Ohio Administrative Code 3737 — Petroleum Underground Storage Tank Release Compensation Board

Chapter 3737-1 General Provisions

Ohio Adm.Code 3737-1-01 Notice of administrative rules hearing.

(A) Public notice of the intention of the petroleum underground storage tank release compensation board to consider adopting, amending, or rescinding a rule in accordance with divisions (A) to (E) of section 119.03 of the Revised Code shall be published in the register of Ohio (www.registerofohio.state.oh.us) pursuant to division (A) of section 119.03 of the Revised Code.

(B) The public notice shall specify the date, time, and place of the hearing and shall include:

(1) A statement of the intention to consider adopting, amending, or rescinding a rule and the purpose or reason therefore;

(2) A synopsis of the proposed rule, amendment, or rescission or a general statement as to the subject to which it relates.

(C) A copy of the public notice shall be provided by the board to any person who requests a copy, provides an email address, mailing address or fax number, and, if appropriate, pays the cost of copying and mailing.

Last updated September 9, 2024 at 2:27 PM

History

• Effective: July 1, 2020
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-02 Public meetings.

(A) Meetings of the petroleum underground storage tank release compensation board, in addition to the meetings required by section 3737.90 of the Revised Code, may be held at the call of the chairman or vice-chairman or upon a majority vote of a quorum of the members present at a meeting.

(B) Any person desiring to determine the time, place or purpose of any meeting of the board, may do so by accessing the board's website at www.petroboard.org or contacting the chairman or vice-chairman of the board or personnel employed by the board.

(C) Any person may provide an email address and be placed on an email list for advance notification of all meetings of the board or meetings at which any specific type of public business is to be discussed. The requestor may request notification be provided by fax or first-class mail. Any person requesting notification by first-class mail shall provide a postage-prepaid self-addressed envelope and pay the cost of copying.

(D) Public notice specifying the date, time and place of all meetings of the board shall be posted on the board's website at www.petroboard.org and at its office.

Last updated September 9, 2024 at 2:27 PM

History

• Effective: July 1, 2020
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-03 Definitions.

(A) The following definitions are provided for the purposes of clarifying the meaning of certain terms as they appear in sections 3737.90 to 3737.98 of the Revised Code and rules 3737-1-01 to 3737-1-23 of the Administrative Code.

(1) "Applicant" means the responsible person for an underground storage tank system who submits an application on a form prescribed by the director for fund payment of, or reimbursement for, corrective action costs for an accidental release of petroleum or compensation paid or to be paid to third parties for bodily injury or property damages.

(2) "Board" means the petroleum underground storage tank release compensation board.

(3) "Bodily injury" means injury to the body or sickness or disease contracted by a person as the result of an accidental release of petroleum and recoverable pursuant to division (C) of section 3737.92 of the Revised Code. Bodily injury does not include the negligent infliction of emotional distress.

(4) "Costs" means actual expenses incurred, paid, and documented.

(5) "Confirmed release" means a "confirmed release" as defined in rule 1301:7-9-13 of the Administrative Code.

(6) "Debt service account or accounts" means an account or accounts established for the purpose of making bond principal and interest payments on a regular basis and as may be required by bond covenants.

(7) "Debt service reserve account or accounts" means a reserve account or accounts established for the purpose of making bond principal and interest payments on a non regular, emergency basis and as may be required by bond covenants.

(8) "Deductible" means the standard, non-reduced amount which is deducted from the responsible person's assurance coverage pursuant to division (D)(3) of section 3737.91 of the Revised Code and established through division (E) of section 3737.92 of the Revised Code.

(9) "Director" means the director of the petroleum underground storage tank financial assurance fund.

(10) "Fee" means:

(a) The annual petroleum underground storage tank financial assurance fee;

(b) The supplemental petroleum underground storage tank financial assurance fee;

(c) Late payment fees;

(d) Transfer fee;

(e) Any and all costs for the collection of delinquent accounts; or

(f) Any other fee as established by the board.

(11) "Financial audit" means an examination of the books, vouchers, and records of a responsible person by the director to determine compliance with this chapter.

(12) "Financial responsibility" means proof of financial accountability as a condition to acquiring eligibility to the fund in accordance with rule 1301:7-9-05 of the Administrative Code adopted by the fire marshal pursuant to section 3737.882 of the Revised Code.

(13) "Fire marshal" means the fire marshal of the state of Ohio.

(14) "Fiscal year" means the time period July first through June thirtieth.

(15) "Imminent hazard" means the appearance of threatened and impending risk or peril.

(16) "Indemnify" means to restore or save harmless the board from a loss by payment or replacement to the board any monies advanced or received from any other party, including, but not limited to, the other parties' insurer or the responsible person's insurer, for the payment of corrective action costs or third party compensation for which the board has reimbursed or will reimburse the responsible person or has compensated or will compensate any third party for bodily injury or property damage.

(17) "Markup" means an amount charged by contractors or consultants beyond the actual cost of labor, equipment, or materials, for management, supervision, or administration of the corrective action activities performed.

(18) "Obligated account" means monies segregated and maintained, on a year by year basis, for reimbursing necessary corrective action costs.

(19) "Obligations" mean undertakings by the board to reimburse or pay a responsible person or the designee of the responsible person.

(20) "Primary consultant" means a person or organization hired, by or through the responsible person, for principal control of corrective action activities at the release site.

(21) "Primary contractor" means a person or organization hired, by or through the responsible person, for principal control of corrective action activities at the release site.

(22) "Program task" means one of the tasks defined by rule 3737-1-12 of the Administrative Code.

(23) "Property damage" means actual and reasonable, incurred or pending expenses for damage to property as the result of an accidental release of petroleum that are not covered by insurance and are recoverable pursuant to division (C) of section 3737.92 of the Revised Code. The following items are a non exhaustive list of items specifically excluded from property damage: loss of profits, loss of business, taxes, utility expenses, punitive damages, exemplary damages, telephone, television, internet, or cable and/or satellite fees, attorney fees or all costs of litigation, including but not limited to court costs, depositions, experts and attorney fees.

(24) "Reduced deductible" means the reduced amount which is deducted from the responsible person's assurance coverage pursuant to division (D)(3) of section 3737.91 of the Revised Code and established through division (F) of section 3737.91 of the Revised Code.

(25) "Release" means a "release" as defined in rule 1301:7-9-13 of the Administrative Code.

(26) "Release incident" means a "release," "suspected release," or "confirmed release," whichever is first discovered.

(27) "Responsible person" means a "responsible person" as defined in division (N) of section 3737.87 of the Revised Code.

(28) "Subcontractor" means a person or organization, other than the primary contractor or primary consultant or a subsidiary thereof, which, at the request of the primary contractor or primary consultant, has undertaken one or more corrective action activities for corrective action at the release site under direction of the primary contractor or primary consultant. Subcontractors do not include persons or entities whose only involvement related to the corrective action is the supply of material or equipment.

(29) "Subrogation" means the board's right to recover costs of corrective actions and compensation to third parties for bodily injury or property damage that the board has paid or will pay to a responsible person or a third party from any other party, including, but not limited to, the other party's insurer and the responsible person's insurer.

(30) "Suspected release" means a "suspected release" as defined in rule 1301:7-9-13 of the Administrative Code.

(31) "Tank population" means the number of tanks as defined by division (O) of section 3737.87 of the Revised Code in existence in the state of Ohio at any given time.

(32) "Technical audit" means an examination of the books, vouchers, and records of a responsible person to determine if the work performed was necessary to meet the requirements of the fire marshal or an order of the director.

(33) "Unclaimed monies trust account" means a trust account established pursuant to section 9.39 of the Revised Code for holding monies unclaimed by the rightful owner.

(34) "Unobligated balance" means monies which have not been placed in the obligated account, the debt service account or accounts, the debt service reserve account or accounts, the unclaimed monies trust account, or used to purchase certificates of deposit for linked deposits. The unobligated balance includes the balance of monies which may be used to retire bonds, pay third-party bodily injury or property damage claims related to the accidental release of petroleum, to purchase certificates of deposit for linked deposits, to fund the obligated account, to fund the debt service account or accounts, to fund the debt service reserve account or accounts, or for various other expenses the board may incur related to administering sections 3737.90 to 3737.98 of the Revised Code.

(35) "Year" means twelve consecutive months.

Last updated January 2, 2025 at 9:07 AM

History

• Effective: January 1, 2025
• Promulgated Under: 119.03

Ohio Adm.Code 1301:7-9-13

This rule was filed with the Legislative Service Commission in PDF format and is presented here as filed.

View Rule Text

Last updated August 18, 2022 at 8:08 AM

History

• Effective: September 1, 2017
• Promulgated Under: 119.03

Ohio Adm.Code 1301:7-9-05

(A) Purpose.

For the purpose of prescribing rules pursuant to division (B) of section 3737.882 of the Revised Code, the state fire marshal hereby adopts this rule to establish financial responsibility requirements for underground storage tank systems containing petroleum. This rule is adopted by the state fire marshal in accordance with Chapter 119. of the Revised Code and shall not be considered a part of the "Ohio Fire Code."

(B) Applicability.

(1) Except as otherwise provided in paragraphs (B)(2) and (B)(3) of this rule, owners and operators of all petroleum UST systems within this state shall comply with this rule by the applicable date established in paragraph (D) of this rule.

(2) Federal government entities whose debts and liabilities are the debts and liabilities of the United States are exempt from the requirements of this rule.

(3) The requirements of this rule do not apply for any of the following petroleum UST systems:

(a) Any UST system holding hazardous wastes listed or identified under Chapter 3745-51 of the Administrative Code, or a mixture of such hazardous waste and petroleum;

(b) Any wastewater treatment tank system that is part of a wastewater treatment facility regulated under section 402 or 307(b) of the Federal Water Pollution Control Act (33 U.S.C.A. 1251 and following, as amended at the time of the effective date of this rule);

(c) Equipment or machinery that contains petroleum for operational purposes such as hydraulic lift tanks and electrical equipment tanks;

(d) Any petroleum UST system whose capacity is one hundred ten gallons or less;

(e) Any UST system that contains a de minimis concentration of petroleum;

(f) Any emergency spill or overflow petroleum containment UST system that is expeditiously emptied after use;

(g) Wastewater treatment tank systems containing petroleum;

(h) Any petroleum UST systems containing radioactive material that are regulated under the Atomic Energy Act of 1954 (42 U.S.C.A. 2011 and following, as amended at the time of the effective date of this rule);

(i) Any petroleum UST system that is part of an emergency generator system at nuclear power generation facilities regulated by the United States nuclear regulatory commission under 10 C.F.R. Part 50, Appendix A, as amended at the time of the effective date of this rule.

(C) If the owner and operator of a petroleum UST system are separate persons, only one of such persons is required to obtain and demonstrate financial responsibility for that particular petroleum UST system; however, both persons are liable in event of noncompliance. Regardless of which person complies, the date for compliance with this rule regarding a particular petroleum UST system as set forth in paragraph (D) of this rule shall be determined by the characteristics of the owner.

(D) Compliance date.

Owners and operators of petroleum UST systems shall comply with the requirements of this rule upon the effective date of this rule.

(E) Definitions.

For the purposes of this rule:

(1) "Accidental release" means any sudden or nonsudden release of petroleum that was neither expected nor intended by the owner or operator of the applicable UST system and that results in the need for corrective action or compensation for bodily injury or property damage.

(2) "Chief financial officer", in the case of state or a political subdivision owner or operator, means the individual with the overall authority and responsibility for the collection, disbursement, and use of funds by the state or political subdivision.

(3) "Financial reporting year" means the latest consecutive twelve-month period for which any of the following reports used to support a financial test is prepared:

(a) A 10-K report submitted to the United States securities and exchange commission;

(b) An annual report of tangible net worth submitted to Dun and Bradstreet;

(c) Annual reports of tangible net worth submitted to the United States energy information administration, the United States rural utilities service, or the Ohio department of commerce; or

(d) A special report by an independent certified public accountant pursuant to paragraph (L)(4)(c) of this rule.

"Financial reporting year" may thus comprise a fiscal or a calendar year period.

(4) "Fund" is the petroleum underground storage tank financial assurance fund created by division (A) of section 3737.91 of the Revised Code.

(5) "Fund deductible" is the deductible amount for the fund established pursuant to division (E) of section 3737.91 of the Revised Code.

(6) "Legal defense cost" is any expense that an owner or operator or provider of financial assurance incurs in defending against claims or actions brought by the following:

(a) United States environmental protection agency or the state to require corrective action or to recover the costs of corrective action;

(b) A third party for bodily injury or property damage caused by an accidental release or by any person on behalf of such a third party; or

(c) A person to enforce the terms of a financial assurance mechanism.

(7) "Occurrence" means an accident, including continuous or repeated exposure to conditions, which results in a release from a petroleum UST system. As used in this rule, the definition of "occurrence" is intended to clarify the scope of coverage under this rule and is not intended either to limit the meaning of "occurrence" in a way that conflicts with standard insurance usage or to prevent the use of other standard insurance terms in place of "occurrence".

(8) "Petroleum marketing facilities" include all facilities at which petroleum is produced or refined and all facilities from which petroleum is sold or transferred to other petroleum marketers or to the public.

(9) "Petroleum marketers" are all persons owning petroleum marketing facilities. Persons owning other types of facilities with petroleum UST systems as well as petroleum marketing facilities are considered to be petroleum marketers.

(10) "Property damage" includes, without limitation, liability for corrective actions associated with releases from petroleum UST systems.

(11) "Provider of financial assurance" means a person that provides financial assurance to an owner or operator of a petroleum UST system through one of the mechanisms listed in paragraphs (L) to (R) of this rule including a guarantor, insurer, risk retention group, surety, or issuer of a letter of credit.

(12) "Reduced fund deductible" is the reduced deductible amount for the fund established pursuant to division (F) of section 3737.91 of the Revised Code.

(13) "Substantial governmental relationship" means the extent of a governmental relationship necessary under Ohio law to make an added guarantee contract issued incident to that relationship valid and enforceable. A guarantee contract is issued "incident to that relationship" if it arises from a clear commonality of interest in the event of an UST release such as conterminous boundaries, overlapping constituencies, common groundwater aquifer, or other relationship other than monetary compensation that provides a motivation for the guarantor to provide a guarantee.

(14) "Tangible net worth" means the tangible assets that remain after deducting liabilities; such assets do not include intangibles such as goodwill and rights to patents or royalties. For purposes of this definition, "assets" means all existing and all probable future economic benefits obtained or controlled by a particular person as a result of past transactions.

(F) Amount and scope of required financial responsibility.

(1) Owners and operators of petroleum UST systems shall obtain and demonstrate for each of the petroleum UST systems within this state which they own or operate financial responsibility both for taking corrective action and for compensating third parties for bodily injury and property damage caused by accidental releases from the petroleum UST systems in the amount of one million dollars per occurrence.

(2) Owners and operators of petroleum UST systems shall obtain and demonstrate for each of the petroleum UST systems within this state which they own or operate financial responsibility for both taking corrective action and for compensating third parties for bodily injury and property damage caused by accidental releases from the petroleum UST systems in at least the following annual aggregate amounts:

(a) For owners or operators of one to one hundred tanks within this state which comprise petroleum UST systems, one million dollars; and

(b) For owners or operators of one hundred one or more tanks within this state which comprise petroleum UST systems, two million dollars.

(3) The amounts of assurance required under paragraphs (F)(1) and (F)(2) of this rule exclude legal defense costs.

(4) The required per-occurrence and annual aggregate coverage amounts do not in any way limit the liability of the owner or operator.

(G) The fund.

(1) Owners and operators of petroleum UST systems shall obtain and demonstrate a valid certificate of coverage in the fund from the petroleum underground storage tank release compensation board pursuant to division (D) of section 3737.91 of the Revised Code for each tank within this state comprising a petroleum UST system.

(2) Owners and operators of petroleum UST systems within this state shall obtain and demonstrate financial responsibility for each such petroleum UST system so as to comply with the deductible coverage requirements described in paragraph (H) of this rule.

(H) Deductible coverage requirements.

(1) Subject to the limitations and requirements of paragraphs (I) and (J) of this rule, and in addition to participation in the fund, owners and operators of petroleum UST systems shall obtain and demonstrate financial responsibility for each petroleum UST system within this state using one of the mechanisms listed in paragraphs (L) to (V) of this rule in an amount equal to the following applicable per-occurrence amount:

(a) If the owner or operator has paid for the year the annual petroleum underground storage tank financial assurance fee established pursuant to division (B) of section 3737.91 of the Revised Code for the tanks comprising the petroleum UST system, the fund deductible; and

(b) If the owner or operator has paid for the year the additional fee established pursuant to division (F) of section 3737.91 of the Revised Code for the tanks comprising the petroleum UST system, the reduced fund deductible.

(2) The financial responsibility required by this paragraph shall include responsibility both for taking corrective action and for compensating third parties for bodily injury and property damage caused by accidental release from petroleum UST systems.

(I) Combination of allowable mechanisms.

(1) Each allowable mechanism described in paragraphs (L) to (V) of this rule which is used by an owner or operator to comply with paragraph (H)(1) of this rule shall include responsibility both for taking corrective action and for compensating third parties for bodily injury and property damage caused by any accidental release from petroleum UST systems.

(2) In complying with paragraph (H)(1) of this rule, owners and operators shall use only one of the mechanisms described in paragraphs (L) to (V) of this rule for any single petroleum UST system. A single allowable mechanism may specify more than one petroleum UST system for which the mechanism provides coverage.

(3) If an owner or operator uses different allowable mechanisms for different petroleum UST systems within this state to comply with paragraph (H) of this rule, each such different mechanism shall comply with paragraph (H) of this rule.

(J) Aggregate amounts for self-insurance, insurance, and risk retention group coverage.

(1) If an owner or operator uses the self-insurance mechanism described in paragraph (L) of this rule to comply with paragraph (H) of this rule for any petroleum UST system within this state, the owner or operator shall, in computing the financial test described in paragraph (L) of this rule, use the applicable annual aggregate from the following table:

• the per-occurrence amount for the tanks covered required by paragraph (H)(1) of this rule.

(2) If an owner or operator uses the insurance or risk retention group coverage described in paragraph (N) of this rule to comply with paragraph (H) of this rule for any petroleum UST system within this state, the owner or operator shall obtain and demonstrate such coverage in at least the applicable annual aggregate amount from the following table:

*the per-occurrence amount for the tanks covered required by paragraph (H)(1) of this rule.

(3) If an owner or operator uses any mechanism described in paragraph (M) or paragraphs (O) to (R) of this rule to comply with paragraph (H) of this rule for any petroleum UST system within this state, the annual aggregate amount of coverage provided by the mechanism shall be at least equal to the per-occurrence amount for the tanks required by paragraph (H)(1) of this rule.

(K) New installations or new acquisitions.

(1) If additional tanks comprising petroleum UST systems are installed, the owner and operator shall obtain and demonstrate a valid certificate of coverage in the fund from the petroleum underground storage tank release compensation board pursuant to division (D) of section 3737.91 of the Revised Code for each additional tank prior to introducing petroleum into the tank. In addition, the owner and operator shall obtain and demonstrate financial responsibility in compliance with paragraph (H) of this rule for each additional tank prior to introducing petroleum into the tank.

(2) If additional existing tanks comprising petroleum UST systems are acquired, the owner and operator shall obtain and demonstrate a valid certificate of coverage in the fund from the petroleum underground storage tank release compensation board pursuant to division (D) of section 3737.91 of the Revised Code for each additional tank prior to bringing the tank into operation. In addition, the owner and operator shall obtain and demonstrate financial responsibility in compliance with paragraph (H) of this rule for each additional tank prior to bringing the tank into operation.

(3) If an owner or operator is using self-insurance, insurance, or risk retention group coverage to comply with paragraph (H) of this rule, and if the number of additional tanks comprising petroleum UST systems within this state installed or acquired results in such a number of tanks so as to require a greater annual aggregate amount of coverage pursuant to paragraph (J)(1) or (J)(2) of this rule, the amount of such additional annual aggregate coverage necessary to comply with paragraph (J)(1) or (J)(2) of this rule shall be obtained and demonstrated by the owner and operator by the first-occurring effective date anniversary of the self-insurance, insurance, or risk retention group coverage used to provide coverage.

(L) Financial test of self-insurance.

(1) An owner or operator may satisfy the requirements of paragraph (H) of this rule by passing a financial test as specified in this paragraph. To pass the financial test of self-insurance, the owner or operator shall meet the criteria of this paragraph based on year-end financial statement for the latest completed fiscal year.

(2) The owner or operator shall have a tangible net worth of at least ten times the sum of the following:

(a) The applicable annual aggregate required by paragraph (J)(1) of this rule;

(b) The total of the applicable aggregate amount required by 40 C. F. R. 280.93 based on the number of USTs located in states other than Ohio for which a financial test is used to demonstrate financial responsibility to the United States environmental protection agency under 40 C.F.R. 280.95 or to another state implementing agency under a state program approved by the United States environmental protection agency under 40 C.F.R. Part 281;

(c) The sum of the corrective action cost estimates, the current closure and post-closure care cost estimates, and amount of liability coverage for which a financial test is used to demonstrate financial responsibility to the United States environmental protection agency under 40 C. F. R. 264.101, 264.143, 264.145, 265.143, 265.145, 264.147, and 265.147 or to a state implementing agency under a state program authorized by the United States environmental protection agency under 40 C.F.R. Part 271 including, without limitation, the Ohio environmental protection agency under agency 3745 of the Administrative Code; and

(d) The sum of current plugging and abandonment cost estimates for which a financial test is used to demonstrate financial responsibility to the United States environmental protection agency under 40 C.F.R. 144.63 or to a state implementing agency under a state program authorized by the United States environmental protection agency under 40 C.F.R. Part 145 including, without limitation, the Ohio environmental protection agency under agency 3745 of the Administrative Code and the Ohio department of natural resources under division 1501:9 of the Administrative Code.

All references in this subparagraph to federal regulations found in Title 40 of the Code of Federal Regulations are as those regulations were amended as of the effective date of this rule.

(3) The owner or operator shall maintain a letter signed by the chief financial officer worded as specified in appendix A to this rule.

(4) The owner or operator shall comply with at least one of the following:

(a) File financial statements annually with the United States securities and exchange commission, the United States energy information administration, the United States rural utilities service, or the Ohio department of commerce;

(b) Report annually the firm's tangible net worth to Dun and Bradstreet, and Dun and Bradstreet shall have assigned the firm a financial strength rating of 4A or 5A; or

(c) Have an independent certified public accountant conduct an audit or a review of the fiscal year-end financial statements of the owner or operator and prepare a special report wherein the independent certified public accountant states both of the following:

(i) He has compared the data that the letter form the chief financial officer specifies as having been derived from the latest year-end financial statements of the owner or operator with the amounts in such financial statements; and

(ii) In connection with that comparison, no matters came to his attention which caused him to believe that the specified data should be adjusted

(5) The owner's or operator's year-end financial statements, if independently audited, cannot include an adverse auditor's opinion, a disclaimer of opinion, or a "going concern" qualification.

(6) To demonstrate that it meets the financial test under this rule, the chief financial officer of the owner or operator, shall sign, within one hundred twenty days of the close of each financial reporting year, as defined by the twelve-month period for which financial statements used to support the financial test are prepared, a letter worded exactly as written in appendix A to this rule, except that the instructions in brackets are to be replaced by the relevant information and the brackets deleted.

(7) Within one hundred twenty days of the end of each subsequent financial reporting year, owners and operators using the self-insurance mechanism shall evaluate whether they meet the financial test described in this paragraph. If an owner or operator using the test to provide financial assurance finds that he or she no longer meets the requirements of the financial test based on the year-end financial statements, the owner or operator shall obtain and demonstrate alternative coverage within one hundred fifty days of the end of the year for which financial statements have been prepared.

(8) The state fire marshal may require reports of financial condition at any time from the owner or operator. If the state fire marshal determines, on the basis of such reports or other information, that the owner or operator no longer meets the financial test requirements of this paragraph, the owner or operator shall obtain and demonstrate alternate coverage in compliance with this rule within thirty days after notification of such a determination by the state fire marshal.

(9) If the owner or operator fails to obtain alternate assurance within one hundred fifty days of the end of the financial reporting year after finding that he or she no longer meets the requirements of the financial test based on the year-end financial statements, or within thirty days of notification by the state fire marshal that he or she no longer meets the requirements of the financial test, the owner or operator shall notify the state fire marshal of such failure within ten days.

(M) Guarantee.

(1) An owner or operator may satisfy the requirements of paragraph (H) of this rule by obtaining a guarantee that conforms to the requirements of this paragraph.

(2) The guarantor shall be in compliance with all applicable sections of Title XXXIX of the Revised Code.

(3) An owner or operator who uses a guarantee to satisfy the requirements of paragraph (H) of this rule shall establish a standby trust fund when the guarantee is obtained. Under the terms of the guarantee, all amounts paid by the guarantor under the guarantee will be deposited directly into the standby trust fund in accordance with instructions from the state fire marshal. This standby trust fund shall meet the requirements specified in paragraph (R) of this rule.

(4) The guarantee shall be worded as written in appendix B to this rule, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted.

(5) The owner or operator shall maintain an original of the guarantee worded as specified in paragraph (M)(4) of this rule.

(N) Insurance and risk retention group coverage.

(1) An owner or operator may satisfy the requirements of paragraph (H) of this rule by obtaining liability insurance that conforms to the requirements of paragraphs (N)(2) and (N)(3) of this rule from an insurer or risk retention group in compliance with Title XXXIX of the Revised Code. Such insurance may be in the form of a separate insurance policy or an endorsement to an existing insurance policy.

(2) Each insurance policy shall be amended by an endorsement worded as specified in the portion of appendix C to this rule entitled "Endorsement" or evidenced by a certificate of insurance worded as specified in the portion of appendix C to this rule entitled "Certificate of Insurance", except that instructions in brackets shall be replaced with the relevant information and the brackets deleted.

(3) The insurer or risk retention group which issues a policy shall provide to the state fire marshal copies of all payments made under the policy within ten days of making payment.

(4) If, after a payment under the policy by an insurer or risk retention group, the state fire marshal determines that the annual aggregate remaining under the policy is less than the applicable per-occurrence amount required under paragraph (H)(1) of this rule for any tank comprising a petroleum UST system within this state, the owner or operator shall obtain and demonstrate alternate coverage in compliance with this rule within thirty days after notification of such a determination by the state fire marshal.

(5) The owner or operator shall maintain a copy of either the endorsement or certificate of insurance worded as specified in paragraph (N)(2) of this rule.

(O) Surety bond.

(1) An owner or operator may satisfy the requirements of paragraph (H) of this rule by obtaining a surety bond that conforms to the requirements of paragraphs (O)(2) and (O)(3) of this rule. The surety company issuing the bond shall be in compliance with all applicable sections of Title XXXIX of the Revised Code.

(2) The surety bond shall be worded as written in appendix D to this rule, except that instructions in brackets shall be replaced with the relevant information and the brackets deleted.

(3) Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond. In all cases, the surety's liability is limited to the per-occurrence and annual aggregate penal sums.

(4) The owner or operator who uses a surety bond to satisfy the requirements of paragraph (H) of this rule shall establish a standby trust fund when the surety bond is acquired. Under the terms of the bond, all amounts paid by the surety under the bond shall be deposited directly into the standby trust fund in accordance with instructions from the state fire marshal under paragraphs (AA)(1) to (AA)(3) of this rule. This standby trust fund shall meet the requirements specified in paragraph (H) of this rule.

(5) The owner or operator shall maintain an original of the surety bond worded as specified in paragraph (O)(2) of this rule.

(P) Letter of credit.

(1) An owner or operator may satisfy the requirements of paragraph (H) of this rule by obtaining an irrevocable standby letter of credit that conforms to the requirements of paragraph (P)(2) of this rule. The issuing institution shall be an entity that has the authority to issue letters of credit in the state of Ohio and whose letter-of-credit operations are regulated and examined by a federal or state agency.

(2) The letter of credit shall be worded as written in appendix E to this rule, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted.

(3) An owner or operator who uses a letter of credit to satisfy the requirements of paragraph (H) of this rule shall also establish a standby trust fund when the letter of credit is acquired. Under the terms of the letter of credit, all amounts paid pursuant to a draft by the state fire marshal shall be deposited by the issuing institution directly into the standby trust fund in accordance with instructions from the state fire marshal under paragraphs (AA)(1) to (AA)(3) of this rule. This standby trust fund shall meet the requirements specified in paragraph (H) of this rule.

(4) The letter of credit shall be irrevocable with a term specified by the issuing institution. The letter of credit shall provide that credit be automatically renewed for the same term as the original term, unless, at least one hundred twenty days before the current expiration date, the issuing institution notifies the owner or operator by certified mail of its decision not to renew the letter of credit. Under the terms of the letter of credit, the one hundred twenty days will begin on the date when the owner or operator receives the notice, as evidenced by the return receipt.

(5) The owner or operator shall maintain an original of the letter of credit worded as specified in paragraph (P)(2) of this rule.

(Q) Trust fund.

(1) An owner or operator may satisfy the requirements of paragraph (H) of this rule by establishing a trust fund that conforms to the requirements of this paragraph. The trustee shall be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a federal agency, the Ohio department of commerce, or an agency of the state in which the fund is established.

(2) The wording of the trust agreement shall be identical to the wording specified in appendix F to this rule, and must be accompanied by a formal certification of acknowledgement as specified in appendix G to this rule.

(3) The trust fund, when established, shall be funded for the applicable full required amount of coverage specified in paragraph (H)(1) of this rule.

(4) If the value of the trust fund is greater than the applicable required amount of coverage specified in paragraph (H)(1) of this rule, the owner or operator may submit a written request to the state fire marshal for release of the excess if such a release is not provided for under the terms of the trust agreement.

(5) If other financial assurance as specified in paragraph (W) of this rule is substituted for all of the trust fund, the owner or operator may submit a written request to the state fire marshal for release of the excess.

(6) Within sixty days after receiving a request from the owner or operator for release of funds as specified in paragraph (Q)(4) or (Q)(5) of this rule, the state fire marshal shall instruct the trustee to release to the owner or operator such funds as the state fire marshal specifies in writing.

(7) The owner or operator shall maintain an original of the trust agreement and certification worded as specified in paragraph (Q)(2) of this rule.

(R) Standby trust fund.

(1) An owner or operator using any one of the mechanisms authorized by paragraph (M), (O), (P), or (U) of this rule shall establish a standby trust fund when the mechanism is acquired. The trustee of the standby trust fund shall be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a federal agency, the Ohio department of commerce, or an agency of the state in which the fund is established.

(2) The standby trust agreement, or trust agreement, shall be worded as written in appendix F to this rule, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted.

(3) The standby trust agreement or trust agreement shall be accompanied by a formal certification of acknowledgement worded as written in appendix G to this rule.

(4) The state fire marshal may instruct the trustee to refund the balance of the standby trust fund or trust fund to the provider of financial assurance if the state fire marshal determines that no additional corrective action costs or third-party liability claims will occur as a result of a release covered by the financial assurance mechanism for which the standby trust fund or trust fund was established.

(5) An owner or operator may establish one trust fund as the depository mechanism for all funds assured in compliance with this rule.

(6) The owner or operator shall maintain an original of the standby trust agreement and certification worded as specified in paragraphs (R)(2) and (R)(3) of this rule.

(S) State or political subdivision bond rating test.

(1) Only the state or a political subdivision owner or operator may use the state or political subdivision bond rating test established in this paragraph to satisfy the requirements of paragraph (H) of this rule.

(2) The state or a general purpose political subdivision owner or operator, or the state or a political subdivision serving as a guarantor may satisfy the requirements of paragraph (H) of this rule by having a currently outstanding issue or issues of general obligation bonds of one million dollars or more, excluding refunded obligations, with a Moody's rating of Aaa, Aa, A or Baa, or a "Standard & Poor's" rating of AAA, AA, A, or BBB. Where the state or political subdivision has multiple outstanding issues, or where the state or political subdivision's bonds are rated by both Moody's and "Standard & Poor's," the lowest rating shall be used to determine eligibility. Bonds that are backed by credit enhancement other than municipal bond insurance shall not be considered in determining the amount of applicable bonds outstanding.

(3) A political subdivision owner or operator, or political subdivision serving as a guarantor that is not a general purpose political subdivision and does not have the legal authority to issue general obligation bonds may satisfy the requirements of paragraph (H) of this rule by having a currently outstanding issue or issues of revenue bonds of one million dollars or more, excluding refunded issues, and by also having a Moody's rating of Aaa, Aa, A, or Baa, or a "Standard & Poor's" rating of AAA, AA, A, or BBB as the lowest rating for any rated revenue bond issued by the political subdivision. Where bonds are rated by both Moody's and "Standard & Poor's," the lower rating for each bond shall be used to determine eligibility. Bonds that are backed by credit enhancement shall not be considered in determining the amount of applicable bonds outstanding.

(4) The state or a political subdivision owner or operator, or the state or a political subdivision serving as a guarantor shall maintain a copy of its bond rating published within the last twelve months by Moody's or "Standard & Poor's."

(5) To demonstrate that it meets the state or political subdivision bond rating test set forth in this paragraph, the chief financial officer of the state or a general purpose political subdivision owner or operator, or the chief financial officer of the state or a political subdivision service as a guarantor shall sign a letter worded exactly as written in appendix H to this rule, except that the instructions in square brackets are to be replaced by the relevant information and the square brackets deleted.

(6) To demonstrate that it meets the state or political subdivision bond rating test set forth in this paragraph, the chief financial officer of a political subdivision owner or operator, or a political subdivision serving as a guarantor other than a general purpose political subdivision shall sign a letter worded exactly as written in appendix I to this rule, except that the instructions in square brackets are to be replaced by the relevant information and the square brackets deleted.

(7) The state fire marshal may require reports of financial condition at any time from the state or a political subdivision owner or operator, or the state or a political subdivision serving as a guarantor. If the state fire marshal determines, on the basis of such reports or other information, that the state of a political subdivision owner or operator, or the state or a political subdivision serving as a guarantor, no longer meets the state or political subdivision bond rating test requirements of this paragraph, the state or a political subdivision owner or operator shall obtain alternative coverage within thirty days after notification of such finding.

(8) If the state or a political subdivision owner or operator using this bond rating test to provide financial assurance finds that it no longer meets the state or political subdivision bond rating test requirements, the state or a political subdivision owner or operator shall obtain alternative coverage within one hundred fifty days of the change in status.

(T) State or political subdivision financial test.

(1) The state or a political subdivision owner or operator may satisfy the requirements of paragraph (H) of this rule by passing the state or political subdivision financial test specified in this paragraph. To be eligible to use the state or political subdivision financial test, the state or a political subdivision owner or operator shall have the ability and authority to asses and levy taxes or to freely establish fees and charges. To pass the state or political subdivision financial test, the state or political subdivision owner or operator shall meet the criteria established in paragraphs (T)(2)(b) and (T)(2)(c) of this rule based on year-end financial statements for the latest completed fiscal year.

(2)

(a) The state or a political subdivision owner or operator shall have the following information available, as shown in the year-end financial statement for the latest completed fiscal year:

(i) Total revenues: consists of the sum of general fund operating and non-operating revenues including net state or local taxes (as applicable), licenses and permits, fines and forfeitures, revenues from use of money and property, charges for services, investment earnings, sales (property, publications, etc.), intergovernmental revenues (restricted and unrestricted), and total revenues from all other governmental funds including enterprises, debt service, capital projects, and special revenues, but excluding revenues to funds held in a trust or agency capacity. For purposes of this state or political subdivision financial test, the calculation of total revenues shall exclude all transfers between funds under the direct control of the state or political subdivision using the state or political subdivision financial test (interfund transfers), liquidation of investments, and issuance of debt.

(ii) Total expenditures: consists of the sum of general fund operating and non-operating expenditures including public safety, public utilities, transportation, public works, environmental protection, cultural and recreational, community development, revenue sharing, employee benefits and compensation, office management, planning and zoning, capital projects, interest payments on debt, payments for retirement of debt principal, and total expenditures from all other governmental funds including enterprise, debt service, capital projects, and special revenues. For purposes of this state or political subdivision financial test, the calculation of total expenditures shall exclude all transfers between funds under the direct control of the state or political subdivision using this state or political subdivision financial test (interfund transfers).

(iii) Local revenues: consists of total revenues (as defined in paragraph (T)(2)(a)(i) of this rule) minus the sum of all transfers from other governmental entities, including all monies received from federal, state, or local government sources.

(iv) Debt service: consists of the sum of all interest and principal payments on all long-term credit obligations and all interest-bearing short-term credit obligations. Includes interest and principal payments on general obligation bonds, revenue bonds, notes, mortgages, judgments, and interest bearing warrants. Excludes payments on non-interest bearing short-term obligations, interfund obligations, amounts owed in a trust or agency capacity, and advances and contingent loans from other governments.

(v) Total funds: consists of the sum of cash and investment securities from all funds, including general, enterprise, debt service, capital projects, and special revenue funds, but excluding employee retirement funds, at the end of the state's or political subdivision's financial reporting year. Includes federal securities, federal agency securities, state and political subdivision securities, and other securities such as bonds, notes and mortgages. For the purpose of this state or political subdivision financial test, the calculation of total funds shall exclude agency funds, private funds, private trust funds, accounts receivable, value of real property, and other non-security assets.

(vi) Population: consists of the number of people in the area served by the state or political subdivision.

(b) The state's or political subdivision's year-end financial statements, if independently audited, cannot include an adverse auditor's opinion or a disclaimer of opinion. The state or political subdivision cannot have outstanding issues of general obligation or revenue bonds that are rated as less than investment grade.

(c) The state or political subdivision owner or operator shall have a letter signed by the chief financial officer worded as specified in paragraph (T)(3) of this rule.

(3) To demonstrate that it meets the state or political subdivision financial test contained in this paragraph, the chief financial officer of the state or political subdivision owner or operator, shall sign, within one hundred twenty days of the close of each financial reporting year, as defined by the twelve-month period for which financial statements used to support this state or political subdivision financial test are prepared, a letter worded exactly as written in appendix J to this rule, except that the instructions in the square brackets are to be replaced by the relevant information and the square brackets deleted.

(4) If the state or a political subdivision owner or operator using this state or political subdivision financial test to provide financial assurance finds that it no longer meets the requirements of the state or political subdivision financial test based on the year-end financial statements, the state or political subdivision owner or operator shall obtain alternative coverage within one hundred fifty days of the end of the year for which financial statements have been prepared.

(5) The state fire marshal may require reports of financial condition at any time from the state or political subdivision owner or operator. If the state fire marshal determines, on the basis of such reports or other information, that the state of a political subdivision owner or operator no longer meets the state or political subdivision financial test requirements of this paragraph, the state or political subdivision owner or operator shall obtain alternative coverage within thirty days after notification of such finding.

(6) If the state or political subdivision owner or operator fails to obtain alternate assurance within one hundred fifty days of finding that it no longer meets the requirements of the state or political subdivision financial test based on the year-end financial statements or within thirty days of notification by the state fire marshal that it no longer meets the requirements of this state or political subdivision financial test, the state or political subdivision owner or operator shall notify the state fire marshal of such failure within ten days.

(U) Political subdivision guarantee.

(1) The political subdivision owner or operator may satisfy the requirements of paragraph (H) of this rule by obtaining a guarantee that conforms to the requirements of this paragraph. The guarantor must be either the state in which the political subdivision owner or operator is located or a political subdivision having a substantial governmental relationship with the political subdivision owner or operator and issuing the guarantee as an act incident to that relationship. A political subdivision acting as the guarantor must:

(a) Demonstrate that it meets the state or political subdivision bond rating tests requirements of paragraph (S) of this rule and deliver a copy of the applicable chief financial officer's letter as contained in paragraph (S)(5) or (S)(6) of this rule to the political subdivision owner or operator;

(b) Demonstrate that it meets the state or political subdivision financial test requirements of paragraph (T) of this rule and deliver a copy of the chief financial officer's letter as contained in paragraph (T)(3) of this rule to the political subdivision owner or operator; or

(c) Demonstrate that it meets the state or political subdivision fund requirements of paragraph (V) of this rule and deliver a copy of the chief financial officer's letter as contained in paragraph (V)(2) of this rule to the political subdivision owner or operator.

(2) If the political subdivision guarantor is unable to demonstrate financial assurance under paragraph (S), (T), or (V) of this rule, at the end of the financial reporting year, the political subdivision guarantor shall send by certified mail, before cancellation or non-renewal of the guarantee, notice to the political subdivision owner or operator. The guarantee will terminate no less than one hundred twenty days after the date the political subdivision owner or operator receives the notification, as evidenced by the return receipt. The political subdivision owner or operator shall obtain alternative coverage as specified in paragraph (CC)(3) of this rule.

(3) The guarantee agreement shall be worded as specified in paragraphs (U)(4)(a) and (U)(4)(b) or (U)(5)(a) and (U)(5)(b) of this rule, depending on which of the following alternative guarantee agreements is selected:

(a) If, in the default or incapacity of the political subdivision owner or operator, the guarantor guarantees to fund a standby trust as directed by the state fire marshal, the guarantee shall be worded as specified in paragraph (U)(4)(a) or (U)(4)(b) of this rule; or

(b) If, in the default or incapacity of the political subdivision owner or operator, the guarantor guarantees to make payments as directed by the state fire marshal for taking corrective action or compensating third parties for bodily injury and property damage, the guarantee shall be worded as specified in paragraph (U)(5)(a) or (U)(5)(b) of this rule.

(4)

(a) If the guarantor is the state, the political subdivision guarantee with standby trust shall be worded exactly as written in appendix K to this rule, except that the instructions in the square brackets are to be replaced with the relevant information and the square brackets deleted.

(b) If the guarantor is a political subdivision, the political subdivision guarantee with standby trust must be worded exactly as written in appendix L to this rule, except that instructions in the square brackets are to be replaced with the relevant information and the square brackets deleted

(5)

(a) If the guarantor is the state, the political subdivision guarantee without standby trust must be worded exactly as written in appendix M to this rule, except that the instructions in the square brackets are to be replaced with the relevant information and the square brackets deleted.

(b) If the guarantor is a political subdivision, the political subdivision guarantee without standby trust must be worded exactly as written in appendix N to this rule, except that instructions in the square brackets are to be replaced with the relevant information and the square brackets deleted.

(V) State or political subdivision fund

(1) The state or political subdivision owner or operator may satisfy the requirements of paragraph (H) of this rule by establishing a dedicated fund account that conforms to the requirements of this paragraph. Except as specified in paragraph (V)(1)(b) of this rule, a dedicated fund may not be commingled with other funds or otherwise used in normal operations. A dedicated fund will be considered eligible if it meets one of the following requirements:

(a) The fund is dedicated by state constitutional provision, or state or political subdivision statute, chapter, ordinance, or order to pay for taking corrective action and for compensating third parties for bodily injury and property damage caused by accidental releases arising from the operation of petroleum USTs and is funded for the amount of coverage required by paragraph (H)(1) of this rule;

(b) The fund is dedicated by state constitutional provision, or state or political subdivision statute, charter, ordinance, or order as a contingency fund for general emergencies, including taking corrective action and compensating third parties for bodily injury and property damage caused by accidental release arising from the operation of petroleum USTs, and is funded for five times the amount of coverage required by paragraph (H)(1) of this rule; or

(c) The fund is dedicated by state constitutional provision, or state or political subdivision statute, charter, ordinance, or order to pay for taking corrective action and for compensating third parties for bodily injury and property damage caused by accidental releases arising from the operation of petroleum USTs. A payment is made to the fund once every year for seven years until this fund is fully funded. This seven year period is hereafter referred to as the "pay-in-period." The amount of each payment shall be determined by this formula:

[TF - CF]/Y

Where TF is the total required financial assurance for the state or political subdivision owner or operation, CF is the current amount in the fund, and Y is the number of years remaining in the pay-in-period, and

(i) The state or political subdivision owner or operator has available bonding authority, approved through voter referendum (if such approval is necessary prior to the issuance of bonds), for an amount equal to the difference between the required amount of coverage and the amount held in the dedicated fund. This bonding authority shall be available for taking corrective action and for compensating third parties for bodily injury and property damage caused by accidental releases arising from the operation of petroleum USTs; or

(ii) The state or political subdivision owner or operation has a letter signed by the Ohio attorney general stating that the use of the bonding authority will not increase the state's or political subdivision's debt beyond the legal debt ceilings established by the applicable state laws. The letter must also state that prior voter approval is not necessary before use of the bonding authority.

(2) To demonstrate that it meets the requirements of the state or political subdivision fund, the chief financial officer of the state or political subdivision owner or operator, or the state or political subdivision serving as a guarantor shall sign a letter worded exactly as written in appendix O to this rule, except that the instructions in the square brackets are to be replaced by the relevant information and the square brackets deleted.

(W) Substitution of financial assurance mechanisms by owner or operator.

(1) An owner or operator may substitute any alternate financial assurance mechanism described in paragraphs (L) to (V) of this rule as specified in this paragraph, provided that at all times he or she maintains an effective financial assurance mechanism that satisfies the requirements of paragraphs (H) and (J) of this rule.

(2) After obtaining alternate financial assurance as specified in paragraph (W)(1) of this rule, an owner or operator may cancel a financial assurance mechanism by providing notice to the provider of financial assurance.

(X) Cancellation or nonrenewal by a provider of financial assurance.

(1) Except as otherwise provided in this paragraph, a provider of financial assurance may cancel or fail to renew an assurance mechanism by sending a notice of termination by certified mail to the owner or operator.

(a) Termination of a political subdivision guarantee, guarantee, a surety bond, or a letter of credit shall not occur until one hundred twenty days after the date on which the owner or operator receives the notice of termination, as evidenced by the return receipt.

(b) Termination of insurance, risk retention group coverage, or the fund coverage except for non-payment or misrepresentation by the insured, shall not occur until sixty days after the date on which the owner or operator receives the notice of termination, as evidenced by the return receipt. Termination for non-payment of premium or fee or misrepresentation by the insured shall not occur until a minimum of ten days after the date on which the owner or operator receives the notice of termination, as evidenced by the return receipt.

(2) If a provider of financial responsibility cancels or fails to renew for reasons other than non-payment of premium or fee or misrepresentation by the insured, or the incapacity of the provider as specified in paragraph (Y)(1)(b) of this rule, the owner and operator shall obtain alternate coverage as specified in this rule within sixty days after receipt of the notice of termination. If the owner and operator fail to obtain alternate coverage within sixty days after receipt of the notice of termination, the owner and operator shall immediately notify the state fire marshal of such failure and submit:

(a) The name and address of the provider of financial assurance;

(b) The effective date of termination; and

(c) The evidence of the financial assistance mechanism subject to the termination maintained in accordance with paragraph (Z)(2) of this rule.

(Y) Reporting by owner and operator.

(1) Owners and operators shall submit the appropriate forms listed in paragraph (Z)(2) of this rule documenting current evidence of financial responsibility to the state fire marshal:

(a) Within thirty days after the owner or operator identifies a release from a UST required to be reported under section 3737.88 or 3737.882 of the Revised Code or this chapter of the Administrative Code.

(b) If the owner and operator fail to obtain alternate coverage as required by this rule, within thirty days after the owner or operator receives notice of:

(i) Commencement of a voluntary or involuntary proceeding under Title 11 (bankruptcy), U. S. Code, naming a provider of financial assurance as a debtor;

(ii) Suspension or revocation of the authority of a provider of financial assurance to issue a financial assurance mechanism;

(iii) Failure of a guarantor to meet the requirements of the financial test; or

(iv) Other incapacity of a provider of financial assurance.

(c) As required by paragraphs (L)(8), (X)(2), and (CC)(5) of this rule.

(2) Owners and operators shall certify compliance with the financial responsibility requirements of this rule when notifying the state fire marshal of the installation of a new UST under paragraph (C) of rule 1301:7-9-04 of the Administrative Code.

(3) Owners and operators shall certify compliance with the financial responsibility requirements of this rule when notifying the state fire marshal of the operation of a previously deferred UST under paragraph (D) of rule 1301:7-9-04 of the Administrative Code.

(4) The state fire marshal may require an owner or operator to submit evidence of financial assurance as described in paragraph (Z)(2) of this rule or other information relevant to compliance with this rule at any time.

(Z) Recordkeeping.

(1) Owners and operators shall maintain copies of all financial assurance mechanisms and related documents used to demonstrate financial responsibility under this rule for a UST until released from the requirements of this rule under paragraph (BB) of this rule. Owners and operators shall maintain such evidence at the UST site or the owner's or operator's place of business. Records maintained off-site shall be made available within twenty-four hours upon request of the state fire marshal.

(2) Owners and operators shall maintain the following types of evidence of financial responsibility:

(a) Owners and operators using an assurance mechanism specified in paragraphs (L) to (V) of this rule shall maintain a copy of the instrument worded as specified.

(b) Owners and operators using a financial test, or a state or political subdivision financial test or a political subdivision guarantee supported by the state or political subdivision financial test shall maintain a copy of the chief financial officer's letter based on year-end financial statements for the most recent completed financial reporting year and, if applicable, a copy of the special report prepared by an independent certified public accountant. Such evidence shall be on file no later than one hundred twenty days after the close of the financial reporting year.

(c) Owners and operators using a guarantee, surety bond, or letter of credit shall maintain a copy of the signed standby trust fund agreement and copies of any amendments to the agreement

(d) A political subdivision owner or operator using a political subdivision guarantee under paragraph (U)(4)(a) or (U)(4)(b) of this rule shall maintain a copy of the signed standby trust fund agreement and copies of any amendments to the agreement.

(e) A state or political subdivision owner or operator using the state or political subdivision bond rating test under paragraph (S) of this rule shall maintain a copy of its bond rating published within the last twelve months by Moody's or "Standard & Poor's."

(f) A political subdivision owner or operator using the political subdivision guarantee under paragraph (U) of this rule, where the guarantor's demonstration of financial responsibility relies on the state or political subdivision bond rating test under paragraph (S) of this rule shall maintain a copy of the guarantor's bond rating published within the last twelve months by Moody's or "Standard & Poor's."

(g) Owners and operators using an insurance policy or risk retention group coverage shall maintain a copy of the signed insurance policy or risk retention group coverage policy, with the endorsement or certificate of insurance and any amendments to the agreements.

(h) Owners and operators shall maintain on file a copy of the current certificate of coverage under the fund.

(i) A state of political subdivision owner or operator using a state or political subdivision fund under paragraph (V) of this rule shall maintain the following documents:

(i) A copy of the state constitutional provision or state or political subdivision statute, charter, ordinance, or order dedicating the fund, and

(ii) Year-end financial statements for the most recent completed financial reporting year showing the amount in the fund. If the fund is established under paragraph (V)(1)(c) of this rule using incremental funding backed by bonding authority, the financial statements shall show the previous year's balance, the amount of funding during the year, and the closing balance in the fund.

(iii) If the fund is established under paragraph (V)(1)(c) of this rule using incremental funding backed by bonding authority, the state or political subdivision owner or operator shall also maintain documentation of the required bonding authority, including either the results of the voter referendum (under paragraph (V)(1)(c)(i) of this rule), or attestation by the Ohio attorney general as specified under paragraph (V)(1)(c)(ii) of this rule.

(j) A political subdivision owner or operator using the political subdivision guarantee supported by the state or political subdivision fund shall maintain a copy of the guarantor's year-end financial statements for the most recent completed financial reporting year showing the amount of the fund.

(k) An owner or operator using an assurance mechanism specified in paragraphs (L) to (V) of this rule shall maintain an updated copy of a certification of financial responsibility worded as written in appendix P to this rule, except that instructions in the square brackets are to be replaced with the relevant information and the square brackets deleted. Owners and operators shall update this certification whenever the financial assurance mechanism used to demonstrate financial responsibility changes.

(AA) Drawing on financial assurance mechanisms.

(1) Except as specified in paragraph (AA)(4) of this rule, upon direction from the state fire marshal, the guarantor, surety, or institution issuing a letter of credit shall place the amount of funds stipulated by the state fire marshal, up to the limit of funds provided by the financial assurance mechanism, into the standby trust if:

(a)

(i) The owner and operator fail to establish alternate financial assurance within sixty days after receiving notice of cancellation of the guarantee, surety bond, letter of credit, or, as applicable, other financial assurance mechanism; and

(ii) The state fire marshal determines or suspects that a release from a UST covered by the mechanism has occurred and so notifies the owner or operator or the owner or operator has notified the state fire marshal pursuant to section 3737.88 or 3737.882 of the Revised Code or this chapter of the Administrative Code of a confirmed or suspected release from a UST covered by the mechanism; or

(b) Any of the conditions contained in paragraph (AA)(2) of this rule are satisfied.

(2) The state fire marshal may draw on a standby trust fund or trust fund when:

(a) The state fire marshal makes a final determination that a release is suspected or has occurred and corrective action for the release is needed, and the owner or operator, after appropriate notice and opportunity to comply, has not conducted corrective action as required under sections 3737.88 and 3737.882 of the Revised Code and this chapter of the Administrative Code; or

(b) The state fire marshal has received either:

(i) Certification from the owner or operator and the third-party liability claimant(s) and from attorneys representing the owner or operator and the third-party liability claimant(s) that a third-party liability claim should be paid. The certification must be worded as written in appendix Q to this rule, except that instructions in square brackets are to be replaced with the relevant information and the square brackets deleted; or

(ii) a valid final court order establishing a judgment against the owner or operator for bodily injury or property damage caused by an accidental release from an underground storage tank covered by financial assurance under this rule and the state fire marshal determines that the owner or operator has not satisfied the judgment.

(3) If the state fire marshal determines that the amount of corrective action costs and third-party liability claims eligible for payment under paragraph (AA)(2) of this rule may exceed the balance of the trust fund or the standby trust fund and the obligation of the provider of financial assurance, the first priority for payment shall be corrective action costs necessary to protect human health and the environment. The state fire marshal shall pay third-party liability claims in the order in which the state fire marshal receives certification under paragraph (AA)(2)(b)(i) of this rule, and valid court orders under paragraph (AA)(2)(b)(ii) of this rule.

(4) A state or political subdivision acting as a guarantor under paragraphs (U)(5)(a) to (U)(5)(b) of this rule, shall make payments as directed by the state fire marshal under the circumstances set forth in paragraphs (AA)(1) to (AA)(3) of this rule.

(BB) Release from the requirements.

Owners and operators are no longer required to maintain financial responsibility under this rule for a petroleum UST system after the UST system has been properly closed as required by this chapter of the Administrative Code or, if corrective action is required, after corrective action has been completed in compliance with sections 3737.88 and 3737.882 of the Revised Code and this chapter of the Administrative Code and the petroleum UST system has been properly closed as required by this chapter of the Administrative Code.

(CC) Bankruptcy or other incapacity of owner or operator or provider of financial assurance and non-payment of premium or fee or misrepresentation by the insured.

(1) Within ten days after commencement of a voluntary or involuntary proceeding under Title 11 (bankruptcy), U.S. Code, naming an owner or operator as debtor, the owner or operator shall notify the state fire marshal by certified mail of such commencement and submit the appropriate forms listed in paragraph (Z)(2) of this rule documenting current financial responsibility.

(2) Within ten days after commencement of a voluntary or involuntary proceeding under Title 11 (bankruptcy), U. S. Code, naming a guarantor providing financial assurance as debtor, such guarantor shall notify the owner and operator by certified mail of such commencement as required under the terms of the guarantee specified in paragraph (M)(4) of this rule.

(3) Within ten days after commencement of a voluntary or involuntary proceeding under Title 11 (bankruptcy), U.S. Code, naming a state or political subdivision owner or operator as debtor, the state or political subdivision owner or operator shall notify the state fire marshal by certified mail of such commencement and submit the appropriate forms listed in paragraph (Z)(2) of this rule documenting current financial responsibility.

(4) Within ten days after commencement of a voluntary or involuntary proceeding under Title 11 (bankruptcy), U.S. Code, naming a guarantor providing a state or political subdivision financial assurance as debtor, such guarantor shall notify the state or political subdivision owner or operator by certified mail of such commencement as required under the terms of the guarantee specified in paragraphs (U)(4)(a) to (U)(5)(b) of this rule.

(5) Owners and operators who obtain financial assurance by a mechanism other than the financial test of self-insurance will be deemed to be without the required financial assurance in the event of a bankruptcy or incapacity of its provider of financial assurance, or a suspension or revocation of the authority of the provider of financial assurance to issue a guarantee, insurance policy, risk retention group coverage policy, surety bond, letter of credit, or a certificate of coverage under the fund established in section 3737.91 of the Revised Code. The owner and operator shall obtain alternate financial assurance as specified in this rule within thirty days after receiving notice of such an event. If the owner and operator do not obtain alternate coverage within thirty days after such notification, they shall notify the state fire marshal of such failure.

(6) Within thirty days after receipt of notification that the fund has become incapable of paying for assured corrective action or third-party compensation costs, the owner and operator shall obtain alternate financial assurance.

(7) Within ten days after receipt of notification of termination of insurance, risk retention group coverage, or the fund coverage because of non-payment of premium or fee or misrepresentation by the insured, the owner and operator shall obtain alternate financial assurance.

(DD) Replenishment of financial assurance mechanisms.

(1) If at any time a standby trust is funded upon the instruction of the state fire marshal with funds drawn from a guarantee, political subdivision guarantee with standby trust, letter of credit, or surety bond, the owner and operator shall within thirty days of being so notified by the state fire marshal:

(a) Replenish the value of financial assurance to equal the full amount of coverage required, or

(b) Acquire another financial assurance mechanism described in paragraphs (L) to (V) of this rule for an amount equal to the full amount of coverage required.

(2) For purposes of this paragraph, the full amount of coverage required is the amount of coverage to be provided by paragraphs (H) and (J) of this rule.

(3) If at any time during the policy period the amount of aggregate remaining under an insurance or risk retention group policy is reduced below either the reduced fund deductible or fund deductible, whichever is applicable, the owner and operator shall within thirty days of being so notified by the state fire marshal

(a) Replenish the value of financial assurance to equal the applicable policy period aggregate under paragraph (J)(2) of this rule, or

(b) Acquire another financial assurance mechanism described in paragraphs (L) to (V) of this rule for an amount equal to the full amount of coverage required.

(4) If at any time a trust agreement balance established pursuant to paragraph (Q) of this rule is reduced below the full amount of coverage required, the owner and operator shall within thirty days of being so notified by the state fire marshal:

(a) Replenish the value of the trust agreement to equal the full amount of coverage required, or

(b) Acquire another financial assurance mechanism described in paragraphs (L) to (P) of this rule for an amount equal to the full amount of coverage required.

View AppendixView AppendixView AppendixView AppendixView AppendixView AppendixView AppendixView AppendixView AppendixView AppendixView AppendixView AppendixView AppendixView AppendixView AppendixView AppendixView Appendix

Last updated September 1, 2022 at 8:21 AM

History

• Effective: September 1, 2022
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-12

(A) Responsible persons shall file an application on a form prescribed by the director for reimbursement for costs actually incurred in conducting corrective action within one year from the completion date of the program task, as described below. If the responsible person fails to make a timely application for reimbursement under this rule, the costs associated with the task shall be denied.

(B) For purposes of submitting an application for reimbursement for corrective actions performed under rule 1301:7-9-13 of the Administrative Code in effect prior to March 31, 1999, the following are completion dates from which the one-year filing periods begin to run for related program tasks:

(1) The immediate corrective action program task completion date shall be the date the release is required to be reported to the fire marshal. The immediate corrective action program task is comprised of those actions set forth in paragraphs (F) and (H) of rule 1301:7-9-13 of the Administrative Code;

(2) The free product removal program task completion date shall be the date the last free product removal report is required to be submitted to the fire marshal or, if no free product removal reports are required, the completion date shall be the date the release was required to be reported to the fire marshal. The free product removal program task is comprised of those actions set forth in paragraph (G) of rule 1301:7-9-13 of the Administrative Code;

(3) The site assessment program task completion date shall be the date the fire marshal determines site assessment to be complete. The site assessment program task is comprised of those actions set forth in paragraph (I) of rule 1301:7-9-13 of the Administrative Code;

(4) The remedial action plan program task completion date shall be the date the fire marshal approves the plan. The remedial action plan program task is comprised of those actions set forth in paragraph (J) and paragraph (K) of rule 1301:7-9-13 of the Administrative Code; and

(5) The completion date for the remedial action plan implementation program task and the on-going system operation and maintenance program task shall be the date the fire marshal issues a no further action determination. The remedial action plan implementation program task and the on-going system operation and maintenance program task are comprised of those actions set forth in paragraph (L) and paragraph (M) of rule 1301:7-9-13 of the Administrative Code.

(6) For any costs not associated with a program task described in this paragraph, the associated completion date shall be the earliest of:

(a) A completion date specified by the fire marshal;

(b) The date the fire marshal issues a no further action determination; or

(c) The date the work was completed.

(C) For purposes of submitting an application for reimbursement for corrective actions performed under rule 1301:7-9-13 of the Administrative Code in effect on or after March 31, 1999, but before March 1, 2005, the following are completion dates from which the one-year filing periods begin to run for related program tasks:

(1) The immediate response action program task completion date shall be the date the release is required to be reported to the fire marshal. The immediate response action program task is comprised of those actions set forth in paragraphs (G)(1), (G)(3), and (G)(4) of rule 1301:7-9-13 of the Administrative Code;

(2) The free product removal program task completion date shall be the date the last free product removal report is required to be submitted to the fire marshal or, if no free product removal reports are required, the completion date shall be the date the release was required to be reported to the fire marshal. The free product removal program task is comprised of those actions set forth in paragraph (G)(2) of rule 1301:7-9-13 of the Administrative Code;

(3) The tier 1 evaluation program task completion date shall be the date the tier 1 evaluation notification, or the tier evaluation report if appropriate, is required to be submitted to the fire marshal. The tier 1 evaluation program task is comprised of those actions set forth in paragraphs (H), (I), (J) and (K) of rule 1301:7-9-13 of the Administrative Code;

(4) The tier 2 evaluation program task completion date shall be the date the tier 2 evaluation report is required to be submitted to the fire marshal. The tier 2 evaluation program task is comprised of those actions set forth in paragraphs (M) and (N) of rule 1301:7-9-13 of the Administrative Code;

(5) The tier 3 evaluation program task completion date shall be the date the tier 3 evaluation report is required to be submitted to the fire marshal. The tier 3 evaluation program task is comprised of those actions set forth in paragraph (O) of rule 1301:7-9-13 of the Administrative Code;

(6) The completion date for the remedial action plan implementation program task and the monitoring plan program task shall be the date the fire marshal issues a no further action determination. The remedial action plan implementation program task is comprised of those actions set forth in paragraphs (S) and (T) of rule 1301:7-9-13 of the Administrative Code. The monitoring plan program task is comprised of those actions set forth in paragraph (R) of rule 1301:7-9-13 of the Administrative Code; and

(7) For any costs not associated with a program task described in this paragraph, the associated completion date shall be the earliest of:

(a) A completion date specified by the fire marshal;

(b) The date the fire marshal issues a no further action determination; or

(c) The date the work was completed.

(D) For purposes of submitting an application for reimbursement for corrective actions performed under rule 1301:7-9-13 of the Administrative Code in effect on or after March 1, 2005, but before September 1, 2017, the following are completion dates from which the one-year filing periods begin to run for related program tasks:

(1) The immediate corrective action program task completion date shall be the date the release is required to be reported to the fire marshal. The immediate corrective action program task is comprised of those actions set forth in paragraphs (G)(1) and (G)(2) of rule 1301:7-9-13 of the Administrative Code;

(2) The free product removal program task completion date shall be the date the last free product removal report is required to be submitted to the fire marshal or, if no free product removal reports are required, the completion date shall be the date the release was required to be reported to the fire marshal. The free product removal program task is comprised of those actions set forth in paragraph (G)(3) of rule 1301:7-9-13 of the Administrative Code;

(3) The tier 1 source investigation program task completion date shall be the date the tier 1 delineation notification, tier 1 notification, or tier 1 evaluation report if appropriate, is required to be submitted to the fire marshal. The tier 1 source investigation program task is comprised of those actions set forth in paragraph (H) of rule 1301:7-9-13 of the Administrative Code;

(4) The tier 1 delineation program task completion date shall be the date the tier 1 investigation report is required to be submitted to the fire marshal. The tier 1 delineation program task is comprised of those actions set forth in paragraph (I) of rule 1301:7-9-13 of the Administrative Code;

(5) The tier 2 evaluation program task completion date shall be the date the tier 2 evaluation report is required to be submitted to the fire marshal. The tier 2 evaluation program task is comprised of those actions set forth in paragraph (L) of rule 1301:7-9-13 of the Administrative Code;

(6) The tier 3 evaluation program task completion date shall be the date the tier 3 evaluation report is required to be submitted to the fire marshal. The tier 3 evaluation program task is comprised of those actions set forth in paragraph (M) of rule 1301:7-9-13 of the Administrative Code;

(7) The completion date for the interim response action program task associated with a tier evaluation shall be the date the interim response action summary report is required to be submitted to the fire marshal. The interim response action program task is comprised of those actions set forth in paragraph (K) of rule 1301:7-9-13 of the Administrative Code.

(8) The completion date for the remedial action plan preparation program task associated with a tier evaluation shall be the date the remedial action plan is required to be submitted to the fire marshal. The remedial action plan preparation program task is comprised of those actions set forth in paragraphs (N)(1) and (N)(2) of rule 1301:7-9-13 of the Administrative Code;

(9) The completion date for the remedial action plan implementation program task and the monitoring plan program task shall be the date the fire marshal issues a no further action determination. The remedial action plan implementation program task is comprised of those actions set forth in paragraphs (N)(3) and (N)(4) of rule 1301:7-9-13 of the Administrative Code. The monitoring plan program task is comprised of those actions set forth in paragraph (O) of rule 1301:7-9-13 of the Administrative Code; and

(10) For any costs not associated with an above described program task, the associated completion date shall be the earliest of:

(a) A completion date specified by the fire marshal;

(b) The date the fire marshal issues a no further action determination; or

(c) The date the work was completed.

(E) For purposes of submitting an application for reimbursement for corrective actions performed under rule 1301:7-9-13 of the Administrative Code in effect on or after September 1, 2017, the following are completion dates from which the one-year filing periods begin to run for related program tasks:

(1) The immediate corrective action program task completion date shall be the date the immediate corrective action report is required to be submitted to the fire marshal. The immediate corrective action program task is comprised of those actions set forth in paragraphs (G)(1) and (G)(2) of rule 1301:7-9-13 of the Administrative Code;

(2) The free product removal program task completion date shall be the date the last free product removal report is required to be submitted to the fire marshal or, if no free product removal reports are required, the completion date shall be the date the release incident was required to be reported to the fire marshal. The free product removal program task is comprised of those actions set forth in paragraph (G)(3) of rule 1301:7-9-13 of the Administrative Code;

(3) The tier 1 source investigation program task completion date shall be the date the tier 1 notification, or the tier 1 evaluation report if appropriate, is required to be submitted to the fire marshal. The tier 1 source investigation program task is comprised of those actions set forth in paragraph (H) of rule 1301:7-9-13 of the Administrative Code;

(4) The tier 1 delineation program task completion date shall be the date the tier 1 investigation report is required to be submitted to the fire marshal. The tier 1 delineation program task is comprised of those actions set forth in paragraph (I) of rule 1301:7-9-13 of the Administrative Code;

(5) The tier 2 evaluation program task completion date shall be the date the tier 2 evaluation report is required to be submitted to the fire marshal. The tier 2 evaluation program task is comprised of those actions set forth in paragraph (L) of rule 1301:7-9-13 of the Administrative Code;

(6) The tier 3 evaluation program task completion date shall be the date the tier 3 evaluation report is required to be submitted to the fire marshal. The tier 3 evaluation program task is comprised of those actions set forth in paragraph (M) of rule 1301:7-9-13 of the Administrative Code;

(7) The completion date for the interim response action program task associated with a tier evaluation shall be the date the interim response action summary report is required to be submitted to the fire marshal. The interim response action program task is comprised of those actions set forth in paragraph (K) of rule 1301:7-9-13 of the Administrative Code.

(8) The completion date for the remedial action plan preparation program task associated with a tier evaluation shall be the date the remedial action plan is required to be submitted to the fire marshal. The remedial action plan preparation program task is comprised of those actions set forth in paragraphs (N)(1) and (N)(2) of rule 1301:7-9-13 of the Administrative Code;

(9) The completion date for the remedial action plan implementation program task and the monitoring plan program task shall be the date the fire marshal issues a no further action determination. The remedial action plan implementation program task is comprised of those actions set forth in paragraphs (N)(3) and (N)(4) of rule 1301:7-9-13 of the Administrative Code. The monitoring plan program task is comprised of those actions set forth in paragraph (O) of rule 1301:7-9-13 of the Administrative Code; and

(10) For any costs not associated with a program task described in this paragraph, the associated completion date shall be the earliest of:

(a) A completion date specified by the fire marshal;

(b) The date the fire marshal issues a no further action determination; or

(c) The date the work was completed.

(F) Where applicable, a responsible person shall submit approvals from the fire marshal to remain in an earlier version of rule 1301:7-9-13 of the Administrative Code. Where a responsible person has been conducting corrective action under an earlier version of rule 1301:7-9-13 of the Administrative Code and elects, or by operation of law, is mandatorily transitioned to continue corrective action under rule 1301:7-9-13 of the Administrative Code in effect on or after March 1, 2005, the election date or the mandatory transition date shall be used as the completion date for submitting the following costs:

(1) For program tasks that are incomplete at the date of the election or mandatory transition date, submit all costs incurred within one year from the date of the election or mandatory transition; and

(2) For all program tasks that are complete at the time of such election or mandatory transition, submit all costs in accordance with paragraph (B), (C), (D), or (E) of this rule.

(G) If the responsible person has made a timely (prior to the original due date for completion) written request to the fire marshal in accordance with rule 1301:7-9-13 of the Administrative Code, to extend the time for completing a program task and if the fire marshal grants that request, the claim submission date for costs associated with that program task shall be as follows:

(1) For costs incurred prior to the original completion date, any claim for such costs shall be submitted within one year from the original completion date;

(2) For costs incurred after the original completion date, any claim for such costs shall be submitted within one year from the newly approved and extended deadline and, if no deadline is stated in the fire marshal's letter, within one year from the date of the letter.

(H) If the fire marshal issues a written request for additional information, the costs for the additional work required to address the requests are due within one year from the date the work is required to be completed by the fire marshal and if no completion date is stated in the original request, within one year from the date of the request. This rule shall be applied to all program tasks performed under all versions of rule 1301:7-9-13 of the Administrative Code.

(I) The application for reimbursement shall include documentation of all notifications and reports required under applicable versions of rule 1301:7-9-13 of the Administrative Code.

(J) The application for reimbursement shall include the following documentation:

(1) Certifications by the responsible person and the primary consultant or primary contractor that the information contained in and submitted with the application is true and correct and represents actual costs incurred;

(2) Invoices, payment records and any other records documenting actual costs incurred and paid related to corrective action; and

(3) Any other records, site-specific information or other relevant information necessary to demonstrate compliance with cleanup standards and tank rules, or any applicable order, as required by the director.

(K) A responsible person may apply for reimbursement for partial completion of a program task provided that the total amount sought in the application for reimbursement is not less than fifty per cent of the applicable deductible of the responsible person except:

(1) For those costs required to be submitted according to paragraph (F)(2), (G), or (H) of this rule, the responsible person shall apply for reimbursement as required by those paragraphs regardless of the total amount sought; and

(2) For those costs associated with remediation system operation and maintenance and/or monitoring activities, the director may grant permission to the responsible person to submit applications for reimbursement in which the total amount being sought is less than fifty per cent of the applicable deductible of the responsible person.

Last updated September 9, 2024 at 2:30 PM

History

• Effective: July 1, 2020
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-04 Annual petroleum underground storage tank financial assurance fee, certification of compliance, and financial responsibility.

(A) Effective April 1, 1991, and each year thereafter in which the unobligated balance of the financial assurance fund does not exceed forty-five million dollars on the date of the board's determination of the annual financial assurance fee for the succeeding fiscal year, the board shall assess a fee for each tank comprising an underground storage tank or an underground storage tank system that contains or has contained petroleum and for which a responsible person is required to demonstrate financial responsibility.

In the event that the unobligated balance of the financial assurance fund exceeds forty-five million dollars on the date of the board's determination of the annual financial assurance fee for the succeeding fiscal year, the board may assess a fee in the year to which the determination applies only to the extent required in or by, or necessary to comply with covenants or other requirements in, revenue bonds issued under sections 3737.90 to 3737.948 of the Revised Code or in proceedings or other covenants or agreements related to such bonds.

(B) The basis for the calculation of the annual fee includes, but is not limited to, the amount needed to meet financial soundness objectives set forth in division (C) of section 3737.91 of the Revised Code.

(C) The director shall notify each responsible person by May first of each year of the annual fee. In the year in which an annual fee is not assessed, the director will provide reasonable notification to responsible persons of the non-assessment of fees.

(D) The annual fee is due no later than July first of each year in which an annual fee is imposed. In the event the director determines that a responsible person fails to pay the annual fee by July first of the year in which the fee is imposed, the director shall notify the responsible person of the non-payment. If the responsible person fails to submit the annual fee within thirty days of the date the notification of non-payment was mailed, the director shall issue an order directing the responsible person to pay the annual fee and a late fee of no more than one thousand dollars per tank. If the responsible person fails to comply with the order within thirty days after the issuance of the order, the director shall notify the fire marshal of the non-compliance and may request the attorney general to bring an action for appropriate relief. No retroactive coverage shall be extended in situations where responsible persons have initially failed to pay fees but later did so, regardless of whether they received notification by the director of such failure.

(E) Except as limited by rule 3737-1-04.1 of the Administrative Code, upon receipt of full payment of the annual fee and any past fees owed, as determined by the director, upon demonstration of financial responsibility as required by rule 1301:7-9-05 of the Administrative Code, and upon certification that the responsible person is in compliance with applicable rules for petroleum underground storage tanks adopted by the fire marshal under section 3737.88 of the Revised Code, the director shall issue a certificate of coverage. Full payment of the annual fee and any past fees owed, as determined by the director, demonstration of financial responsibility, and certification of compliance with the fire marshal's rules for the succeeding fiscal year on or before July first will entitle the responsible person to a certificate of coverage in effect for the fiscal year. Full payment of the annual fee and any past fees owed, as determined by the director, demonstration of financial responsibility, and certification of compliance with the fire marshal's rules for the current fiscal year after July first will result in a certificate of coverage for that fiscal year effective on and after the date the board received full payment due, demonstration of financial responsibility, and certification of compliance with the fire marshal's rules.

(F)

(1) In the event an underground storage tank is installed, the responsible person shall immediately notify the director upon introducing a regulated petroleum product into the underground storage tank. In the event that an underground storage tank exists for which a certificate of coverage was not issued in the previous fiscal year, due to an omission by the responsible person, the responsible person shall immediately notify the director. Upon receipt of notice of a newly installed or existing underground storage tank, as required by this paragraph of this rule, the director shall notify the responsible person of the assessment of any applicable fees, including but not limited to, the annual fee for the fiscal year in which a regulated petroleum product was first introduced into the underground storage tank or July 1, 1989, whichever is later, and any subsequent fiscal years. No certificate of coverage will be issued until the responsible person notifies the director of any newly installed or any existing underground storage tank for which a certificate of coverage is not currently in place, pays the fees assessed, demonstrates financial responsibility, certifies compliance with the fire marshal's rules, and, if applicable, complies with rule 3737-1-04.1 of the Administrative Code.

(2) In the event ownership of an underground storage tank is transferred, the new responsible person shall notify the director within thirty days of the date of the transfer. Upon receipt of notice of a transfer of an underground storage tank as required by this paragraph of this rule, the director shall notify the new responsible person of the assessment of any applicable fees, including, but not limited to, any fees outstanding at the time of the transfer of the underground storage tank, as determined by the director, any annual fees outstanding for the fiscal year in which the transfer occurred and any subsequent fiscal years of ownership, and a transfer fee of five hundred dollars per facility.

(a) If a certificate of coverage is in effect at the time of the transfer and the new responsible person notifies the director as required by this rule, pays the transfer fee, demonstrates financial responsibility, and certifies compliance with the fire marshal's rules within thirty days of the date the notification of assessment was mailed, the certificate of coverage shall be effective as of the date ownership of the underground storage tank transferred. Where outstanding fees exist at the time of the transfer, the certificate of coverage is null and void for purposes of coverage.

(b) If a certificate of coverage is not in effect at the time of the transfer or the new responsible person fails to notify the director of the transfer as required by this rule, no certificate of coverage will be issued until the new responsible person notifies the director of the transfer, pays the fees assessed, demonstrates financial responsibility, certifies compliance with the fire marshal's rules, and, if applicable, complies with rule 3737-1-04.1 of the Administrative Code.

(3) The responsible person shall pay the fees assessed no later than thirty days from the date the notification of assessment was mailed. If the responsible person fails to submit the annual fees within thirty days of the date the notification of assessment was mailed, the director shall notify the responsible person of the nonpayment. If the responsible person fails to submit the annual fees within thirty days of the date the notification of non-payment was mailed, the director shall issue an order directing the responsible person to pay the annual fees and a late fee of no more than one thousand dollars per tank. If the responsible person fails to comply with the order within thirty days after the issuance of the order, the director shall notify the fire marshal of the non-compliance and may request the attorney general to bring an action for appropriate relief. Where a responsible person has failed to notify the director as required by this rule, the director is not required to notify the responsible person of fees owed.

(G)

(1) The failure of the responsible person to do any of the following will result in the non-issuance or revocation of a certificate of coverage:

(a) Pay any annual fee authorized by division (B) of section 3737.91 of the Revised Code or supplemental fee authorized by division (C) of section 3737.91 of the Revised Code;

(b) Demonstrate and maintain financial responsibility as required by rule 1301:7-9-05 of the Administrative Code for the deductible or, when appropriate, the reduced deductible established under rule 3737-1-06 of the Administrative Code;

(c) Certify and maintain compliance with applicable rules for petroleum underground storage tank systems adopted by the fire marshal under section 3737.88 of the Revised Code for each tank for which a certificate of coverage is sought;

(d) Comply with rule 3737-1-04.1 of the Administrative Code, if applicable;

(e) Pay any fee assessed pursuant to this chapter; or

(f) Pay any fees determined by the director to be owed.

(2) Where a certificate of coverage is to be denied because the criteria of this rule for issuance are not satisfied, the director shall issue a notice of pending denial to the responsible person. The responsible person shall have thirty days from the mailing of the notice to correct the deficiency. If, after thirty days from the mailing of the notice, the responsible person fails to correct the deficiency, the director shall issue a determination of denial.

Once a certificate of coverage has been issued, it may be revoked at any time upon a finding by the director that the criteria of this rule for issuance are not satisfied. Where a certificate of coverage is to be revoked, the director shall issue a notice of pending revocation to the responsible person. The responsible person shall have thirty days from the mailing of the notice to correct the deficiency.

If, after thirty days from the mailing of the notice, the responsible person fails to correct the deficiency, the director shall issue a determination of revocation.

The director shall notify the fire marshal of any determination issued pursuant to this rule.

Where the requirements of this rule are not satisfied at the time of a release incident, the certificate of coverage is null and void for purposes of coverage and the responsible person is not eligible for reimbursement from the fund, regardless of whether the certificate of coverage has been revoked.

(H) A responsible person may file with the board written objections to any order or determination of the director issued pursuant to this rule. If the written objection is received by the board within thirty days of the date of mailing of the order or determination, the board shall appoint a referee to conduct an adjudication hearing in accordance with section 119.09 of the Revised Code.

(I) The amount of the annual fee is three hundred fifty dollars per tank.

(J) A responsible person shall maintain with the director a current mailing address at which determinations, notices, and orders may be sent. Any determination or order shall be mailed by certified mail to the responsible person's address on file with the board. If the certified mail is returned unclaimed, the order or determination shall be served upon the responsible person in accordance with section 119.07 of the Revised Code.

Last updated September 9, 2024 at 2:27 PM

History

• Effective: July 1, 2023
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-04.1

(A) Where the board has not issued a valid certificate of coverage to a responsible person for a given underground storage tank, for the prior two or more consecutive fiscal years, the responsible person shall:

(1) Comply with the requirements of rule 3737-1-04 of the Administrative Code; and

(2) Certify that, prior to payment, no release has been suspected or confirmed from the underground storage tank system for which coverage is being sought, or any known release is in compliance with the requirements of rule 1301:7-9-13 of the Administrative Code.

(B) The director shall verify the responsible person is in compliance with applicable rules for petroleum underground storage tank systems adopted by the fire marshal under section 3737.88 of the Revised Code for each tank for which a valid certificate of coverage has not been issued for the prior two or more consecutive fiscal years. Where the director determines that the responsible person is not in compliance with the fire marshal's rules for the underground storage tank system for which coverage is being sought, the certificate of coverage shall be denied in accordance with paragraph (G)(2) of rule 3737-1-04 of the Administrative Code.

(C) Nothing in any part of this rule shall be interpreted to allow retroactive coverage for releases suspected or confirmed prior to the effective date of a valid certificate of coverage.

(D) The rights, limitations, responsibilities, and requirements of rule 3737-1-04 of the Administrative Code in acquiring and maintaining a valid certificate of coverage apply to any certificate of coverage sought and obtained under this rule.

Last updated September 9, 2024 at 2:27 PM

History

• Effective: January 1, 2019
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-06

(A) The deductible is fifty-five thousand dollars. The board may modify the deductible in accordance with rule 3737-1-15 of the Administrative Code.

(B) Any responsible person owning, or owning or operating, a total of six or fewer tanks may purchase the reduced deductible of eleven thousand dollars. If a responsible person eligible to elect the reduced deductible purchases the reduced deductible, the reduced deductible shall be purchased for all tanks owned by the responsible person. The additional fee due for the reduced deductible shall be two hundred dollars per tank. The board may modify the reduced deductible in accordance with rule 3737-1-15 of the Administrative Code.

(C) If a responsible person discovers one or more underground storage tanks, which were previously unknown to the responsible person and which have not been registered with the fire marshal pursuant to rule 1301:7-9-04 of the Administrative Code, on the responsible person's property, the discovered underground storage tank(s) shall not affect the responsible person's qualification for the reduced deductible for any fiscal year prior to and including the fiscal year of discovery. If the responsible person is required to demonstrate financial responsibility for the discovered underground storage tank(s), the discovered underground storage tank(s) shall be used to determine the responsible person's qualification for the reduced deductible in succeeding fiscal years.

Last updated January 2, 2025 at 9:07 AM

History

• Effective: January 1, 2025
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-05 Supplemental petroleum underground storage tank financial assurance fee.

(A) In any fiscal year in which the board finds that the unobligated balance in the financial assurance fund is less than fifteen million dollars, the board may assess a supplemental fee for each tank comprising an underground storage tank or an underground storage tank system that contains or has contained petroleum and for which a responsible person is required to demonstrate financial responsibility.

(B) The basis for the calculation of the supplemental fee will include but will not be limited to the amount needed to meet financial soundness objectives set forth in division (C) of section 3737.91 of the Revised Code.

(C) The director of the fund shall notify each responsible person of the supplemental fee no less than thirty days before the date on which the supplemental fee is due.

(D) The supplemental fee is due no later than thirty days from the date of the notification. In the event a responsible person fails to pay the fee within the thirty-day period set forth in this rule, the director of the fund shall notify the responsible person of the non-payment. If the responsible person fails to submit the supplemental fee within thirty days after the notification of non-payment has been mailed, the director of the fund shall issue an order by certified mail directing the responsible person to pay the supplemental fee and a late fee of up to one thousand dollars per tank. If the responsible person fails to comply with the order within thirty days after the issuance of the order, the director shall notify the fire marshal of the non-compliance and may request the attorney general to bring an action for appropriate relief.

(E) The director shall revoke the certificate of coverage upon the failure to pay the supplemental fee.

(F) In the event that a new tank is placed in service after July first of the year in which the supplemental fee is imposed, the director shall notify the responsible person by certified mail of the assessment of the fee. The responsible person shall tender the fee assessed no later than thirty days from the date of notification of fees. If the responsible person fails to submit the fee within thirty days after the notification has been mailed, the director of the fund shall notify the responsible person of the non-payment. If the responsible person fails to submit the supplemental fee within thirty days after the notification of non-payment has been mailed, the director of the fund shall issue an order by certified mail directing the responsible person to pay the supplemental fee and a late fee of up to one thousand dollars per tank. If the responsible person fails to comply with the order within thirty days after the issuance of the order, the director shall notify the fire marshal of the non-compliance and may request the attorney general to bring an action for appropriate relief.

(G) A responsible person may file with the board written objections to the order of the director no later than thirty days from the mailing of the order. The board, upon receipt of the objections, shall appoint a referee to conduct an adjudication hearing in accordance with section 119.09 of the Revised Code.

Last updated September 9, 2024 at 2:28 PM

History

• Effective: November 30, 2009
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-15

(A) As a last alternative to maintain solvency of the fund and as a method of ensuring that funding levels are maintained on the basis of known and estimated obligations of the fund, the board may modify the deductible or the reduced deductible. The basis for the modification of the deductible or the reduced deductible will include but not be limited to the amount needed to meet the financial soundness objectives set forth in division (C) of section 3737.91 of the Revised Code.

(B) The board shall notify each responsible person by certified mail of the change in the deductible or the reduced deductible no later than the first day of May preceding the first day of the fiscal year in which the deductible amount will apply. If the certified mail is returned unclaimed, it shall be served upon the responsible person in accordance with section 119.07 of the Revised Code.

(C) The applicable deductible for any claim is the deductible in effect at the time of the release incident for which application for reimbursement is being made.

Last updated September 9, 2024 at 2:30 PM

History

• Effective: July 1, 2020
• Promulgated Under: 119.03

Ohio Adm.Code 1301:7-9-04

(A) Purpose and scope.

For the purpose of prescribing rules pursuant to sections 3737.02 and 3737.88 of the Revised Code, the state fire marshal hereby adopts this rule to establish registration requirements for underground storage tanks containing petroleum or other regulated substances. This rule is adopted by the state fire marshal in accordance with Chapter 119. of the Revised Code and shall not be considered a part of the "Ohio Fire Code."

(B) Annual registration.

(1) No later than the last day of June of each year, owners of the following UST systems shall submit an annual registration application to the state fire marshal:

(a) UST systems currently in use; and

(b) UST systems which were taken out of service after January 1, 1974 in a manner not in compliance with either the "Ohio Fire Code" or this chapter of the Administrative Code, as those requirements were in effect at the time the UST systems were taken out of service.

Owners shall submit an annual registration application to the state fire marshal for each location containing such UST systems.

(2) The state fire marshal shall prescribe the annual registration application form to be used and shall, at least thirty days prior to the registration deadline of each year, provide an annual registration application to each owner that submitted any UST registration application to the state fire marshal during the previous year.

(3) A fee in the amount of one hundred dollars for each tank or compartment comprising an UST system listed on the application shall be submitted by the owner with the annual registration application to the state fire marshal. Any registration received after the last day of June each year shall be charged a ten per cent late fee.

(C) Registration for new UST system installations.

(1) Any owner who installs an UST system shall, within thirty days of bringing such UST system into service, submit a new UST system registration application described in either paragraph (C)(2) or (C)(3) of this rule to the state fire marshal for each location where such UST system is installed.

(2) If an UST system is installed at a location for which there is no current registration, the owner of the UST system shall submit a new facility registration application to the state fire marshal on the application form prescribed by the state fire marshal.

(3) If an UST system is installed at a location for which there is a current registration, the owner of the UST system shall submit a modified registration application to the state fire marshal on the form prescribed by the state fire marshal.

(4) A fee in the amount of one hundred dollars for each newly installed tank or compartment brought into service which is listed on either registration application described in paragraph (C)(2) or (C)(3) of this rule shall be submitted by the owner with the new UST registration application to the state fire marshal.

(D) Registration of previously deferred USTs.

Owners shall submit a new UST system registration application to the state fire marshal on the form prescribed by the state fire marshal for any previously deferred USTs identified in paragraph (C) of rule 1301:7-9-01 of the Administrative Code that are subject to the registration requirement. All requirements identified in this rule shall apply to previously deferred USTs.

(E) Transfer of UST ownership.

(1) Any person to whom ownership of any UST is transferred shall, within thirty days of the transfer, submit a transfer of UST registration application to the state fire marshal for each location where an UST subject to the transfer is located. The state fire marshal shall prescribe a form for this application. The transferor shall notify the transferee of this requirement at the time of transfer.

(2) A fee in the amount of one hundred dollars for each tank or compartment comprising an UST system listed on the application shall be submitted by the new owner of the UST with the transfer of UST registration application to the state fire marshal.

(F) Change of product.

Owners shall submit a modified registration application to the state fire marshal on the form prescribed by the state fire marshal within thirty days of a change of product. A registration fee is not required.

(G) Fee exemptions.

The United States, the state of Ohio, and political subdivisions are exempted from paying the fees described in paragraphs (B)(3), (C)(4), and (E)(2) of this rule. This paragraph does not exempt the United States, the state of Ohio, and political subdivisions from compliance with all other provisions of this rule.

(H) The state fire marshal shall review each application and reject the application if the application does not provide all of the information required by the prescribed form or if the application was not accompanied by the applicable fee payment.

(I) No person shall falsify any information on any application form required by this rule.

(J) Owners of UST systems shall retain a copy of all current and valid registration applications required by this rule, and shall make such copy available for inspection within twenty-four hours of a request by the state fire marshal or local fire official.

Last updated June 26, 2025 at 9:02 AM

History

• Effective: April 1, 2018
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-07 Establishing fund eligibility for corrective action costs.

(A) As a prerequisite to determining fund payment of or reimbursement for corrective action costs for an accidental release of petroleum, the director of the fund shall issue a determination of eligibility for payment of or reimbursement for such costs where all of the following conditions are established:

(1) Receipt of an application for eligibility, from a responsible person, within one year from the date of the release incident;

(2) At the time of the release incident, a responsible person possessed a valid certificate of coverage, issued pursuant to rule 3737-1-18 of the Administrative Code and the validity of which has been maintained pursuant to paragraph (E) of rule 3737-1-04 of the Administrative Code, for the petroleum underground storage tank system from which the release occurred;

(3) The corrective action performed or to be performed has been authorized by the fire marshal under section 3737.882 of the Revised Code and rules adopted under that section;

(4) The costs of performing the corrective action are necessary to comply with the rules of the fire marshal adopted under sections 3737.88 and 3737.882 of the Revised Code governing corrective actions;

(5) One of the following applies:

(a) At the time of the release incident, the petroleum underground storage tank system from which the release occurred was registered in compliance with rules adopted by the fire marshal under section 3737.88 of the Revised Code;

(b) The fire marshal has recommended that payment or reimbursement be made because good cause existed for the responsible person's failure to have so registered the petroleum underground storage tank system, and the responsible person has registered the petroleum underground storage tank system with the fire marshal and paid all back registration fees payable under those rules for registration of the system from the time the responsible person should have, but failed to register the system.

(6) The fire marshal has determined that, when the claim was filed, a responsible person was in compliance with all orders issued under sections 3737.88 and 3737.882 of the Revised Code regarding the petroleum underground storage tank system from which the release occurred;

(7) A responsible person demonstrates financial responsibility for the deductible amount applicable under section 3737.91 of the Revised Code for the petroleum underground storage tank system from which the release occurred;

(8) The responsible person has not falsified any attestation contained on a registration application required by rules adopted under section 3737.88 of the Revised Code;

(9) The responsible person has met the petroleum release, suspected release, and confirmed release reporting requirements set forth in rule 1301:7-9-13 of the Administrative Code; and

(10) At the time of the release incident the petroleum underground storage tank system from which the release occurred was in compliance with rules, other than rules regarding registration, adopted by the fire marshal under section 3737.88 of the Revised Code.

(B) Where an eligibility application is incomplete, the director or the director's designee may make a written request for additional information. The responsible person shall supply the additional information within sixty days from the date of the request. If the responsible person fails to respond within sixty days from the date of the request, the director or the director's designee shall make a second request for the information and shall notify the responsible person that failure to respond within thirty days from the date of the second request shall result in the denial of eligibility. If the responsible person fails to provide the additional information within thirty days from the date the second request is sent, eligibility shall be denied.

(C) A responsible person determined eligible pursuant to paragraph (A) of this rule for fund payment or reimbursement shall maintain eligibility to the fund by doing all of the following:

(1) Maintaining all records required to be kept by this chapter;

(2) Paying all fees assessed;

(3) Maintaining compliance with all orders issued pursuant to sections 3737.88 and 3737.882 of the Revised Code; and

(4) Maintaining compliance with the applicable rules for petroleum underground storage tank systems adopted by the fire marshal under section 3737.88 of the Revised Code for the underground storage tank system from which the release occurred.

(D) A responsible person may transfer his rights for reimbursement of eligible costs to another party upon notification and approval of the director. The responsible person is liable for all requirements of this chapter and fund eligibility must be maintained. The transfer of rights does not limit the liabilities of the responsible person. Nothing within this paragraph of this rule shall be deemed to grant standing, to a non responsible person, to bring a claim against the petroleum financial assurance fund.

(E) When the director has reason to believe that a responsible person determined eligible to claim against the financial assurance fund pursuant to paragraph (A) of this rule, has failed to maintain fund eligibility pursuant to paragraph (C) of this rule, the director shall issue a notice of pending fund ineligibility. The responsible person shall have thirty days from the mailing of such notice to either provide evidence of compliance with all fund eligibility requirements or take all necessary steps to correct the non-compliance.

If, after thirty days from the mailing of the notice of pending fund ineligibility, the responsible person fails to resolve the non-compliance, the director shall issue a determination of fund ineligibility immediately nullifying any previously-determined eligibility for disbursement from the financial assurance fund. The director shall provide the fire marshal with a copy of the determination issued pursuant to this paragraph.

(F) A responsible person or the fire marshal may file written objections with the board to the director's determination of fund ineligibility no later than thirty days from the mailing of the determination of fund ineligibility. The board upon receipt of the objections shall appoint a referee to conduct an adjudication hearing on the determination in accordance with section 119.09 of the Revised Code.

(G) Determination of fund eligibility does not constitute an obligation for reimbursement from the fund.

Last updated January 2, 2025 at 9:07 AM

History

• Effective: January 1, 2025
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-18

(A) The board shall issue a certificate of coverage to any responsible person who has met the criteria of division (D) of section 3737.91 of the Revised Code and rule 3737-1-04 of the Administrative Code.

(B) One master certificate of coverage will be issued for each responsible person making payment to the fund and a facility certificate of coverage will be issued for each assured facility site.

(C) The certificate of coverage shall contain the following information:

(1) The amount of coverage to which the responsible person is entitled from the fund;

(2) The time period for which the certificate provides coverage; and

(3) The number of tanks which are included in the coverage.

Last updated September 9, 2024 at 2:31 PM

History

• Effective: July 1, 2020
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-08 Disbursement of the financial assurance fund.

(A) Once eligibility of the fund has been determined in accordance with rule 3737-1-07 or 3737-1-19 of the Administrative Code and the director of the fund has determined that an application for reimbursement is complete, obligations of the fund will not occur unless and until the deductible or the reduced deductible, as applicable, set forth in rule 3737-1-06 of the Administrative Code has been met. Costs determined to be non-reimbursable pursuant to paragraph (A) of rule 3737-1-09 of the Administrative Code shall not be applied toward the responsible person's deductible or reduced deductible. Reimbursable costs covered by insurance policies or recoverable from any other party shall be applied toward the responsible person's deductible or reduced deductible.

(B) Obligations of the fund for eligible claims will be made on a first-come, first-served basis as determined by receipt of a completed application in accordance with rule 3737-1-12 of the Administrative Code, except when:

(1) The fire marshal requests approval of an accelerated review on the basis of the threat posed to human health or the environment by the release to which the claim applies;

(2) An accelerated review is granted under paragraph (D) of this rule; or

(3) The director determines that efficiency and cost savings will be better served by a non first-come, first-served review.

Notwithstanding any of the above provisions, the director may prioritize claims for releases that have received no further action status.

(C) The board may by resolution provide for the payment of claims by installments in a manner and for a period of time it deems appropriate when the board concludes that such action is necessary to maintain the financial soundness of the financial assurance fund.

(D) A responsible person may file with the board a request for an accelerated review of a claim by submitting an application for hardship status on a form prescribed by the director, and by providing financial documentation to the director that demonstrates approval of hardship status is necessary to prevent an imminent financial hardship to the responsible person.

(1) As a result of such request, the director may:

(a) Seek additional information from the responsible person to demonstrate imminent financial hardship, including but not limited to, a statement of assets and liabilities and/or a detailed listing of living expenses and income;

(b) Request the responsible person sign a release to allow the director to obtain or inspect federal and state tax records; and

(c) Request copies of any contracts existing between the responsible person and his/her contractors and subcontractors remediating the site.

(2) A responsible person who refuses to provide the requested information shall be denied hardship status. Any documentation received by the board for a hardship application is a public record unless it is specifically exempt under section 149.43 of the Revised Code.

(3) Upon review of financial data and/or other information provided by the responsible person, the director shall recommend to the board approval or denial of the request.

The board may accept or reject the director's recommendation. Should the board's action result in the approval of hardship status, the approval shall be for two years from the date of the board's action. A responsible person may file a subsequent request for hardship status on or before the expiration of a two-year period of hardship status.

(4) The board may suspend or discontinue the hardship program when it determines that doing so is in the interest of the fund. Any hardship statuses that are currently in effect at the time the board suspends or discontinues the hardship program shall remain effective until the expiration of the two-year period from the date the application was approved.

Last updated September 9, 2024 at 2:28 PM

History

• Effective: July 1, 2020
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-19

(A) As a prerequisite to determining fund payment or reimbursement for compensation paid or to be paid for third-party claims for bodily injury or property damages caused by the accidental release of petroleum resulting in the need for corrective action, the director of the fund shall issue a determination of eligibility where all of the following conditions are established:

(1) Receipt of an application for eligibility, from a responsible person, for third-party bodily injury or third-party property damage caused by an accidental release of petroleum within thirty days from the first of any of the following events: service of a third-party complaint against a responsible person, the submission of a third-party demand for settlement, or notice of representation of a third party in a lawsuit against a responsible person. Where a third-party eligibility application is incomplete, the director or the director's designee may make a written request for additional information. The responsible person shall supply the additional information in writing and within sixty days from the date of the request. If the responsible person fails to make a written response within sixty days from the date of the request, the director or the director's designee shall make a second request for the information and shall notify the responsible person that failure to respond within thirty days from the date of the second request shall result in an eligibility denial. If the responsible person fails to make a written response within thirty days from the date the second request is sent, eligibility shall be denied;

(2) At the time of the release incident, a responsible person possessed a valid certificate of coverage, issued pursuant to rule 3737-1-18 of the Administrative Code and the validity of which has been maintained pursuant to paragraph (E) of rule 3737-1-04 of the Administrative Code, for the petroleum underground storage tank system from which the release occurred;

(3) One of the following applies:

(a) At the time of the release incident, the petroleum underground storage tank system from which the release occurred was registered in compliance with rules adopted by the fire marshal under section 3737.88 of the Revised Code;

(b) The fire marshal has recommended that payment or reimbursement be made because good cause existed for the responsible person's failure to have so registered the petroleum underground storage tank system, and the responsible person has registered the petroleum underground storage tank system with the fire marshal and paid all back registration fees payable under those rules for registration of the system from the time the responsible person should have, but failed to register the system.

(4) The fire marshal has determined that, when the claim was filed, a responsible person was in compliance with all orders issued under sections 3737.88 and 3737.882 of the Revised Code regarding the petroleum underground storage tank system from which the release occurred;

(5) A responsible person demonstrates financial responsibility for the deductible amount applicable under section 3737.91 of the Revised Code for the petroleum underground storage tank system from which the release occurred;

(6) The responsible person has not falsified any attestation contained on a registration application required by rules adopted under section 3737.88 of the Revised Code;

(7) The responsible person has met the petroleum release, suspected release, and confirmed release reporting requirements set forth in rule 1301:7-9-13 of the Administrative Code;

(8) At the time of the release incident, the petroleum underground storage tank system from which the release occurred was in compliance with rules, other than rules regarding registration, adopted by the fire marshal under section 3737.88 of the Revised Code; and

(9) The responsible person has been determined eligible for payment of or reimbursement for eligible corrective action costs pursuant to rule 3737-1-07 of the Administrative Code.

(B) A responsible person determined eligible pursuant to paragraph (A) of this rule for fund payment or reimbursement shall maintain eligibility to the fund by doing all of the following:

(1) Maintaining all records required to be kept by this chapter;

(2) Paying all fees assessed;

(3) Maintaining compliance with all orders issued pursuant to sections 3737.88 and 3737.882 of the Revised Code; and

(4) Maintaining compliance with applicable rules for petroleum underground storage tank systems adopted by the fire marshal under section 3737.88 of the Revised Code for the underground storage tank system from which the release occurred.

(C) When the director has reason to believe that a responsible person determined eligible to claim against the financial assurance fund pursuant to paragraph (A) of this rule has failed to maintain fund eligibility pursuant to paragraph (B) of this rule, the director shall issue a notice of pending fund ineligibility. The responsible person shall have thirty days from the mailing of such notice to either provide evidence of compliance with all fund eligibility requirements or take all necessary steps to correct the non-compliance.

If, after thirty days from the mailing of the notice of pending fund ineligibility, the responsible person fails to resolve the non-compliance, the director shall issue a determination of fund ineligibility immediately nullifying any previously determined eligibility for disbursement from the financial assurance fund. The director shall provide the fire marshal with a copy of the determination issued pursuant to this paragraph.

(D) A responsible person or the fire marshal may file written objections with the board to the director's determination of fund ineligibility no later than thirty days from the mailing of the determination of fund ineligibility. The board upon receipt of the objections shall appoint a referee to conduct an adjudication hearing on the determination in accordance with section 119.09 of the Revised Code.

(E) Determination of fund eligibility does not constitute an obligation for reimbursement from the fund.

Last updated September 9, 2024 at 2:31 PM

History

• Effective: July 1, 2020
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-09

(A) Nothing in this chapter shall be construed to authorize reimbursement for:

(1) Costs of corrective actions for releases prior to July 1, 1989;

(2) Costs of corrective action for a release for which eligibility for reimbursement was not sought or the director has issued a determination denying eligibility for reimbursement;

(3) Litigation costs of any kind incurred by a responsible person including, but not limited to: litigation costs involving acquisition of site access; local, state, or federal permit decisions; any ordinance, rule or regulation; or any order issued by the fire marshal;

(4) Costs associated with:

(a) Achieving compliance with the provisions of sections 3737.881 to 3737.98 of the Revised Code, with the exception of costs associated with corrective action and compensation to third parties for expenses associated with bodily injury or property damages caused by an accidental release of petroleum;

(b) Interest or carrying charges of any kind;

(c) Insurance premiums other than specific policies or bonds required for corrective action;

(d) Studies or surveys of an underground storage tank site or on property nearby other than from a site check or a tier 1 source investigation conducted in accordance with rule 1301:7-9-13 of the Administrative Code;

(e) Corrective action costs which are determined to be non-reimbursable as a result of an audit performed in accordance with this chapter.

(5) Costs incurred in conducting corrective action for non-petroleum products or corrective action for petroleum or petroleum products unrelated to a release from an assured underground storage tank system;

(6) Costs incurred in conducting corrective action for a release from an unassured underground storage tank system;

(7) Costs not required for performing corrective action completed in accordance with rules of the fire marshal adopted under sections 3737.88 and 3737.882 of the Revised Code or, where applicable, completed in accordance with an order which establishes corrective action procedures and criteria for the site;

(8) Costs covered by insurance policies;

(9) Costs associated with the closure or removal of underground storage tank systems in compliance with rule 1301:7-9-12 of the Administrative Code. Where closure or removal costs, associated with rule 1301:7-9-12 of the Administrative Code, are intermingled with corrective action costs and are not separately ascertainable, the director shall determine corrective action costs to be reimbursed based upon a reasonable standard;

(10) Costs for corrective action other than those costs which are usual, customary, and reasonable for similar corrective action activities and under similar circumstances, as determined from the fund's experience;

(11) Costs for corrective action not submitted in accordance with rule 3737-1-12 of the Administrative Code;

(12) Additional corrective action costs for a release after a no further action letter has been issued by the fire marshal for the subject release, unless the additional corrective action activities are required by the fire marshal due to the discovery of chemicals of concern, as defined by rule 1301:7-9-13 of the Administrative Code, resulting from the original release but not reasonably discovered prior to the issuance of the no further action letter. Under no circumstances shall additional corrective action costs be reimbursed when the original no further action letter for the subject release is rescinded more than five years from the date it was issued;

(13) Costs necessary for performing corrective action authorized by the fire marshal under section 3737.882 of the Revised Code and rules adopted under that section greater than fifty per cent of the usual, customary, and reasonable costs of the least expensive alternative for similar corrective action activities and under similar circumstances as determined from the fund's experience when pre-approval is required by paragraph (A), (B), or (D) of rule 3737-1-12.1 of the Administrative Code but pre-approval was not sought or granted;

(14) Undocumented corrective action costs, unless the responsible person submits documentation to support the corrective action costs within ninety days from the date that the director or the director's designee requests such documentation in writing pursuant to rule 3737-1-13 of the Administrative Code;

(15) Costs for corrective action and/or third-party claims where the responsible person has failed to comply with rule 3737-1-22 of the Administrative Code that are greater than the lesser of:

(a) Fifty per cent of eligible corrective action and third-party claim costs, as determined by the director; or

(b) The total of eligible corrective action and third-party claim costs, as determined by the director, minus the amount of the deductible and minus the amount that has been or will be paid by any party to the responsible person.

(16) Cost for performing corrective action not authorized by the fire marshal under section 3737.882 of the Revised Code and rules adopted under that section;

(17) Markup for any of the following:

(a) Costs of disposal, disposal facilities, and treatment facilities;

(b) Internal expenses including labor, supplies, per diem travel expenses, and intra-company billings;

(c) Charges for supplies;

(d) Charges for materials;

(e) Charges for equipment;

(f) Charges for utilities;

(g) Costs for transportation of soil and backfill materials;

(h) Lump-sum charges that include any of the costs in paragraphs (A)(17)(a) to (A)(17)(g) of this rule.

(18) Costs that have been or will be paid by any party under rule 3737-1-22 of the Administrative Code.

(B) The board, upon payment or reimbursement from the fund to a responsible person for corrective action costs or the cost of compensation to third parties for bodily injury or property damage, is entitled by subrogation to all rights of the responsible person to recover those costs from any other person.

Last updated January 2, 2025 at 9:07 AM

History

• Effective: January 1, 2025
• Promulgated Under: 119.03

Ohio Adm.Code 1301:7-9-12

(A) Purpose and scope.

For the purpose of prescribing rules pursuant to section 3737.88 of the Revised Code, the state fire marshal hereby adopts this rule to establish requirements for underground storage tank systems containing regulated substances that are changed-in-service, out-of-service, closed-in-place, or permanently removed. This rule is adopted by the state fire marshal in accordance with Chapter 119. of the Revised Code and shall not be considered a part of the "Ohio Fire Code." The USTs listed in paragraph (E) of rule 1301:7-9-01 of the Administrative Code are exempt from this rule.

(B) Applicability.

(1) Any person who holds a legal, possessory, or equitable interest in a parcel of real property on which an underground storage tank system is located, regardless of that person's status as an "owner" or "operator" as those terms are defined in section 3737.87 of the Revised Code, shall comply with paragraphs (A) to (H) of this rule. The owner and operator shall comply with the entire rule.

(2) In carrying out any activity under this rule, owners and operators shall comply with the provisions of rules 1301:7-9-13, 1301:7-9-16, and 1301:7-9-17 of the Administrative Code.

(C) Handling of regulated materials associated with an UST site.

The handling, transportation, and disposal of any regulated substance removed from an UST system, regulated soil, backfill materials, groundwater, wash water, or other similar materials removed from the system or facility shall be managed in accordance with all applicable federal, state, and local regulations in effect for the type, volume, constituent concentration, and classification of the material.

(D) General performance standards, permits, certified UST installers, and inspectors.

(1) Any person performing work pursuant to paragraphs (E)(3) to (H) of this rule shall obtain a permit pursuant to paragraph (C) of rule 1301:7-9-10 of the Administrative Code, prior to performing work, from the local fire agency that has been given delegated authority pursuant to rule 1301:7-9-15 of the Administrative Code and has jurisdiction over the area where the UST system is located, or, if the local fire agency does not have such authority, the state fire marshal.

(2) Unless stated otherwise, all work performed pursuant to paragraphs (E)(3) to (H) of this rule shall be supervised by a certified UST installer and inspected by a certified UST inspector as required in paragraph (D) of rule 1301:7-9-10 of the Administrative Code.

(E) Out-of-service requirements of UST systems.

(1) Out-of-service UST systems shall comply with the applicable requirements of this chapter including, but not limited to, the following:

(a) The UST system shall comply with registration requirements pursuant to rule 1301:7-9-04 of the Administrative Code;

(b) The UST system shall comply with the financial responsibility requirements pursuant to rule 1301:7-9-05 of the Administrative Code; and

(c) The UST system shall comply with the construction and operational requirements for cathodic protection pursuant to paragraphs (D)(1) to (D)(4) of rule 1301:7-9-06 of the Administrative Code.

(2) UST systems that have been taken temporarily out-of-service for ninety days or less shall have the fill line, gauge opening, and dispensing unit secured against tampering. Vent lines shall remain open and functioning.

(a) Regulated substances may remain in the UST system provided that release detection is performed pursuant to rule 1301:7-9-07 of the Administrative Code. Release detection is not required if the UST system is empty.

(b) An UST system shall be considered empty when all regulated substances have been removed so that no more than one inch of residue, or 0.3 per cent by volume of the total capacity of the UST system, remains in the UST system.

(3) If an UST system is out-of-service for more than ninety days, the UST system shall be maintained in the following manner:

(a) The vent lines shall be left open and functioning;

(b) All other lines, pumps, manways, and ancillary equipment shall be capped and secured; and

(c) The UST system shall be emptied. The UST system shall be considered empty when all regulated substances have been removed so that no more than one inch of residue, or 0.3 per cent by volume of the total capacity of the UST system, remains in the UST system.

(4) An out-of-service permit shall be obtained for a UST system out-of service for more than ninety days in accordance with paragraph (C) of rule 1301:7-9-10 of the Administrative Code.

(a) As a condition of the out-of-service permit:

(i) an inspection of the out-of-service UST system shall be performed as required by paragraph (D) of rule 1301:7-9-10 of the Administrative Code; and

(ii) the state fire marshal or the certified fire safety inspector with delegated authority pursuant to rule 1301:7-9-15 of the Administrative Code for the jurisdiction where the UST system is located may require the owner or operator to submit copies of release detection records pursuant to paragraph (E) of rule 1301:7-9-07 of the Administrative Code.

(b) Prior to the expiration date of an out-of-service permit, a renewal of the out-of-service permit may be requested by submitting a new permit application pursuant to rule 1301:7-9-10 of the Administrative Code to the state fire marshal or the certified fire safety inspector with delegated authority pursuant to rule 1301:7-9-15 of the Administrative Code for the jurisdiction where the UST system is located.

(i) Neither a certified UST installer nor a certified UST inspector are required for the renewal of an out-of-service permit.

(ii) Any previously approved out-of-service permit for which a renewal application is submitted shall be extended until the state fire marshal or the certified fire safety inspector with delegated authority pursuant to rule 1301:7-9-15 of the Administrative Code for the jurisdiction where the UST system is located acts upon the renewal application.

(c) The out-of-service permit or renewal permit shall be effective until the expiration date listed on the permit as issued by the state fire marshal or the certified fire safety inspector with delegated authority pursuant to rule 1301:7-9-15 of the Administrative Code for the jurisdiction where the UST system is located. If no expiration date is listed on the permit, the out-of-service permit shall extend for twelve months commencing from the issuance date of the permit.

(d) The out-of-service permit application or renewal application shall be approved at the discretion of the state fire marshal or the certified fire safety inspector with delegated authority pursuant to rule 1301:7-9-15 of the Administrative Code for the jurisdiction where the UST system is located.

(e) A variance from the timely submittal of an out-of-service permit application or renewal application may be granted provided that the person making the request demonstrates good cause as determined by the state fire marshal or the certified fire safety inspector with delegated authority pursuant to rule 1301:7-9-15 of the Administrative Code for the jurisdiction where the UST system is located.

(5) An UST system that is out-of-service more than ninety days as part of a scheduled seasonal discontinuation of use is not required to obtain the out-of-service permit required in paragraph (E)(4) of this rule if all of the following conditions are met:

(a) Written approval is obtained from the state fire marshal or the certified fire safety inspector with delegated authority pursuant to rule 1301:7-9-15 of the Administrative Code for the jurisdiction where the UST system is located;

(b) The UST system is located at a marina, golf course, amusement park, or other seasonal facility as approved by the state fire marshal or the certified fire safety inspector with delegated authority pursuant to rule 1301:7-9-15 of the Administrative Code for the jurisdiction where the UST system is located;

(c) The UST system is maintained in accordance with paragraph (E)(3) of this rule; and

(d) The UST system has not been out-of-service for a period exceeding twelve months.

(6) If an UST system or portions of an UST system are out-of-service for more than twelve months or more than the time period approved in the out-of-service permit or renewal permit granted pursuant to paragraph (E)(4) of this rule, owners and operators and any person who holds a legal, possessory, or equitable interest in a parcel of real property on which an UST system is located, regardless of that person's status as an "owner" or "operator" as those terms are defined in section 3737.87 of the Revised Code shall manage the UST system as follows:

(a) For a UST system which meets the performance standards pursuant to paragraphs (D)(1) to (D)(4) of rule 1301:7-9-06 of the Administrative Code:

(i) Within ninety days, place the UST system back into service pursuant to paragraph (E)(7) of this rule;

(ii) Within ninety days, permanently remove, close-in-place, or perform a change-in-service of the UST system in accordance with this rule; or

(iii) Obtain a variance from the timely submittal of an out-of-service permit application or renewal application in accordance with paragraph (E)(4)(e) of this rule and request an out-of-service-permit or renewal permit by submitting a permit application form pursuant to paragraph (E)(4) of this rule.

(b) For a UST system which does not meet the performance standards pursuant to paragraphs (D)(1) to (D)(4) of rule 1301:7-9-06 of the Administrative Code:

(i) Within ninety days, permanently remove or close-in-place the UST system in accordance with this rule, unless an out-of-service permit or a renewal permit is granted; or

(ii) Obtain a variance from the timely submittal of an out-of-service permit application or renewal application in accordance with paragraph (E)(4)(e) of this rule. Prior to applying for the out-of-service or renewal permit, a closure assessment shall be performed in accordance with this rule and a closure assessment report shall be submitted to the state fire marshal pursuant to paragraph (J) of this rule.

(7) An UST system that has been out-of-service may be placed back into service at any time provided that the UST system meets the following requirements:

(a) The UST system is equipped to meet the performance standards for existing UST systems pursuant to rules 1301:7-9-06 of the Administrative Code and release detection requirements pursuant to rule 1301:7-9-07 of the Administrative Code;

(b) For an UST system out-of-service more than twelve months, the UST and primary pipe that routinely contains regulated substances passes a tightness test in accordance with paragraph (F) of rule 1301:7-9-07 of the Administrative Code within seven days of going back into service;

(c) Within thirty days of bringing the UST system back into service, the owner or operator submits a modified registration application to the state fire marshal pursuant to rule 1301:7-9-04 of the Administrative Code;

(d) The UST system is in compliance with financial responsibility requirements pursuant to rule 1301:7-9-05 of the Administrative Code; and

(e) The state fire marshal has not issued an order prohibiting the UST system from going back into service.

(F) Closure-in-place requirements for UST systems.

(1) An UST system shall not be closed-in-place unless approved in writing by the state fire marshal or a certified fire safety inspector with delegated authority pursuant to rule 1301:7-9-15 of the Administrative Code for the jurisdiction where the UST system is located. An UST system may be closed-in-place for any of the following reasons:

(a) The UST system is located adjacent to or under equipment or structures that will likely be damaged or weakened if the UST system is removed;

(b) The UST system is situated in a location where the removal is physically impossible; or

(c) Removal of the UST system may expose people or the environment to unreasonable hazards.

(2) Cost shall not be used as the sole reason to justify closure-in-place of an UST system.

(3) An UST system shall be closed-in-place in accordance with American Petroleum Institute Recommended Practice RP 1604-96 (reaffirmed 2010); "Closure of Underground Petroleum Storage Tanks." The solid inert material used to fill an UST shall have a density that is greater than the density of water.

(G) Permanent removal requirements for UST systems.

(1) Permanent removal of an UST system shall be conducted in accordance with the following:

(a) All UST systems or any part of an UST system permanently closed shall be removed from the ground unless certified fire safety inspector with delegated authority pursuant to rule 1301:7-9-15 of the Administrative Code or the state fire marshal for jurisdictions where such authority has not been delegated authorizes the closure-in-place of the UST system or any part of the UST system pursuant to paragraph (F)(1) of this rule;

(b) All UST systems being permanently removed shall comply with the cleaning, removal, and safety requirements of American Petroleum Institute Recommended Practice RP 1604-96 (reaffirmed 2010); "Closure of Underground Petroleum Storage Tanks," and National Institute for Occupational Safety and Health Publication 80-106 (1979); "Criteria for a Recommended Standard: Working In Confined Spaces";

(c) The UST shall be maintained in a safe condition by regularly monitoring the UST to ensure that an accumulation of explosive vapors does not occur;

(d) All liquid and residue shall be removed from the UST before the UST leaves the site and handled in accordance with paragraph (C) of this rule;

(e) The UST shall be rendered unusable and free of explosive vapors before the UST leaves the site by cutting up or crushing the UST or by perforating the UST with numerous holes using explosion-proof non-sparking tools. No UST shall be reused for any purpose unless written approval is obtained from the state fire marshal prior to the removal activity;

(f) All backfill from the tank cavity excavation, piping trenches, dispensing unit areas, and remote fill pipe trenches shall be removed;

(g) No more than twelve inches of native soil shall be removed from the side walls and bottom of the tank cavity excavation, piping trenches, dispensing unit areas, and remote fill pipe trenches. Where bedrock is encountered within the first twelve inches, remove native soil to bedrock. Further removal of soil from the tank cavity, piping trenches, dispensing unit areas, and remote fill pipe trenches for purposes of corrective action shall not be conducted without prior approval of the state fire marshal; and

(h) Backfill and native soil removed from the tank cavity excavation, piping trenches, dispensing unit areas, and remote fill pipe trenches may be stored on site in a stockpile for a period not to exceed one hundred twenty days, provided that it has been placed on a concrete pad, asphalt pad, or impermeable synthetic liner, covered to prevent infiltration of rain water, and has been surrounded with a berm to minimize the run off water. Storage on site beyond one hundred twenty days shall only occur if prior approval has been granted by the state fire marshal. Backfill and native soil shall be handled in accordance with paragraph (C) of this rule.

(i) If free product is discovered during removal of any portion of an UST system, owners and operators shall report a suspected release to the state fire marshal within twenty-four hours and proceed to conduct corrective action in accordance with paragraph (F) of rule 1301:7-9-13 of the Administrative Code.

(H) Change-in-service requirements for UST systems.

Change-in-service of an UST system shall be conducted in accordance with the following:

(1) The UST shall be completely emptied and cleaned; and

(2) All piping and ancillary equipment that is not part of the change-in-service shall be closed-in-place or removed pursuant to paragraphs (F) and (G) of this rule.

(I) Closure assessment.

(1) Activities subject to closure assessment.

(a) Owners and operators of UST systems shall conduct a closure assessment in accordance with this rule when the UST system, or any portion of the UST system:

(i) Is permanently removed, including removals resulting from modifications of product piping and associated components that routinely contain a regulated substance;

(ii) Is closed-in-place;

(iii) Undergoes a change-in-service;

(iv) Is out-of-service for more than twelve months without an approved permit extending the out-of-service period in accordance with paragraph (E)(4) of this rule; or

(v) Is out-of-service for more than the approved out-of-service period pursuant to paragraph (E)(4) of this rule unless a variance has been requested and approved in accordance with paragraph (E)(4)(e) of this rule.

(b) For those portions of the UST systems being assessed in a corrective action program under rule 1301:7-9-13 of the Administrative Code, a closure assessment is required unless a demonstration is made to show that those portions of the UST system requiring a closure assessment have been adequately assessed in accordance with rule 1301:7-9-13 of the Administrative Code or an alternative sampling plan is approved by the state fire marshal.

(c) Closure assessment activities listed in paragraphs (I)(2)(b) to (I)(2)(h), (I)(3), (I)(4), (J)(1) and (J)(2) of this rule are not required for piping and piping components, such as flex connectors and other underground ancillary equipment, that meet the performance standards for corrosion protection pursuant to paragraphs (D)(3) and (D)(4) of rule 1301:7-9-06 of the Administrative Code and are not located in a sole source aquifer, or in a drinking water source protection area as defined in paragraph (C) of rule 1301:7-9-13 of the Administrative Code, under the following conditions:

(i) Permanently out-of-service piping is located in a common trench with piping associated with an operating UST system and the owner or operator demonstrates that the piping that is permanently out-of-service has passed a tightness test conducted pursuant to paragraphs (F)(2)(a) and (F)(2)(b) of rule 1301:7-9-07 of the Administrative Code within sixty days prior to being closed-in-place until closure assessment activities are conducted on the remaining piping in the trench under paragraphs (I)(1)(a)(i) to (I)(1)(a)(iii) of this rule;

(ii) Modifications to piping and piping components located beneath dispensers or over USTs that are not contained in a containment sump and the owner or operator demonstrates that the piping components have passed a tightness test conducted pursuant to rule 1301:7-9-07 of the Administrative Code within sixty days prior to modification of the piping components; or

(iii) Piping and piping components that are modified in order to install under dispenser containment and the owner or operator demonstrates that the piping components have passed a tightness test conducted pursuant to rule 1301:7-9-07 of the Administrative Code within sixty days prior to the installation.

(d) Closure assessment activities listed in paragraphs (I)(2)(b) to (I)(2)(h), (I)(3), (I)(4), (J)(1) and (J)(2) of this rule are not required for modifications to piping and piping components, such as flex connectors and other underground ancillary equipment, contained in a containment sump beneath dispensers or over USTs that meet the performance standards for corrosion protection for product piping pursuant to paragraphs (D)(3) to (D)(4) of rule 1301:7-9-06 of the Administrative Code and the owner or operator demonstrates the UST system has passed one of the following:

(i) A tightness test of the piping components conducted pursuant to rule 1301:7-9-07 of the Administrative Code within sixty days prior to modification of the piping components, or

(ii) A tightness test of the containment sump conducted pursuant to rule 1301:7-9-07 of the Administrative Code within sixty days prior to modification of the piping components.

(e) Notwithstanding the testing requirements of paragraph (I)(1)(c) or (I)(1)(d) of this rule, if free product is present in soil or backfill or if there is evidence that a component is leaking or has leaked to the soil or backfill, a site check must be performed pursuant to paragraph (F)(3) of rule 1301:7-9-13 of the Administrative Code. If there is evidence that a component is leaking or has leaked and appears to be contained within the containment sump, then a tightness test of the containment sump may be performed in accordance with paragraph (F) of rule 1301:7-9-07 of the Administrative Code. If the tightness test of the containment sump passes, a site check is not required.

(f) All activities conducted pursuant to paragraph (I)(1)(c) or (I)(1)(d) of this rule shall be documented on a form prescribed by the state fire marshal and submitted to the state fire marshal within ninety days of the completion of the activities. The form shall include, but not be limited to, the following:

(i) A site map which accurately depicts property boundaries, street locations, above ground structures, and the UST systems including the number of USTs, adjacent properties and their use, and the portions of the UST system being modified;

(ii) Results from a tightness test of the piping components or of the containment sump;

(iii) A description of the visual site evaluation required by paragraph (I)(2)(a) of this rule including the UST components being modified and the area immediately adjacent to the components being modified;

(iv) Copy of any permit required to be obtained in accordance with paragraph (D)(1) of this rule; and

(v) Documentation demonstrating compliance with corrosion protection.

(2) The closure assessment shall consist of the following:

(a) Owners and operators shall perform a visual site evaluation of the UST site to identify all evidence of past or present operational problems, including but not limited to, surface soil staining, concrete staining, concrete patchwork, areas where piping and pump islands existed, and all potential sources of contamination.

(b) Soil samples for the UST system or portion of the UST system required to undergo a closure assessment pursuant to paragraph (I)(1) of this rule shall be biased towards the area of greatest suspected contamination and collected from all of the following locations:

(i) Under both ends of each UST. If an UST is longer than thirty-five feet an additional sample shall be collected from under the middle of the UST;

(ii) Each side wall of the UST cavity excavation on a ten foot by ten foot grid system;

(iii) Every ten feet along piping runs that routinely contain regulated substances and under joints unless the sample location is within two linear feet of another sample collected in accordance with this paragraph. If the piping run is less than ten feet in length, no sample is required to be collected for the piping, but soil samples are still required for joints, couplings and elbows. If the piping run is associated with an airport hydrant system, an alternate sampling plan shall be submitted for approval by the state fire marshal prior to conducting the closure assessment;

(iv) Underneath each dispensing unit where joints, elbows, and flex connectors are located. If the dispensing unit is located directly above the UST, no sample is required to be collected, provided the UST is being removed; and

(v) From below any remote fill pipe area located more than ten feet from the UST cavity excavation.

(c) Water samples for permanent removal shall be collected in the following manner:

(i) Water in the UST system excavation shall be completely evacuated and disposed of in accordance with all federal, state, and local laws and regulations. If water cannot be completely evacuated from the UST system excavation or if upon recharge of water from surrounding soil into the UST system excavation to a level sufficient for sample collection, a water sample shall be collected within a period not to exceed twenty-four hours following the evacuation.

(ii) Soil samples required pursuant to paragraph (I)(2)(b)(i) of this rule need not be collected if a water sample is obtained in accordance with paragraph (I)(2)(c)(i) of this rule.

(d) When the UST system or portion of the UST system is required to undergo a closure assessment pursuant to paragraph (I)(1)(a)(i) of this rule, the following samples shall be collected and sent to an accredited laboratory for analysis:

(i) The two soil samples with the highest field screening readings from each UST cavity excavation including side wall samples. If the UST cavity excavation contained more than three USTs, an additional soil sample for each multiple or fraction of three USTs. If no field screening readings are exhibited, the samples submitted shall be biased toward the area(s) of greatest suspected contamination;

(ii) For product piping:

(a) One soil sample for every five samples collected, or fraction thereof, from underneath all product piping, and;

(b) Notwithstanding the one-to-five ratio, at least one sample from each distinct piping run that leads to a separate dispensing area or remote fill shall be submitted.

The samples submitted for analysis shall be those with the highest field screening readings from each distinct piping run. The remaining samples shall be those with the highest field screening readings, regardless of location. If no field screening readings are exhibited, the sample submitted shall be biased towards the area of greatest suspected contamination;

(iii) The soil sample with the highest field screening reading from each remote fill pipe area. If no field screening readings are exhibited, the sample submitted shall be biased toward the area(s) of greatest suspected contamination;

(iv) The soil sample with the highest field screening reading from each dispenser island. If more than three dispensing units are present at the island, an additional sample shall be submitted for each multiple or fraction of three dispensing units. If no field screening readings are exhibited, the sample submitted shall be biased toward the area(s) of greatest suspected contamination; and

(v) Any water samples that were collected.

(e) When the UST system or portion of the UST system is required to undergo a closure assessment pursuant to paragraphs (I)(1)(a)(ii) to (I)(1)(a)(v) of this rule, soil and water samples shall be collected by installing a minimum of three soil boring and monitoring wells in the area most likely to contain chemical(s) of concern above action levels. The soil borings and monitoring wells shall be installed, sampled, and analyzed in accordance with paragraph (H)(1)(d)(ii) of rule 1301:7-9-13 of the Administrative Code. Soil boring and monitoring well locations shall be selected to ensure the evaluation of soil and groundwater surrounding the UST system and be biased towards areas most likely to contain chemical(s) of concern. Soil borings and monitoring wells shall be installed and sampled within ninety days of the following:

(i) When an UST system is closed-in-place as described by paragraph (F) of this rule;

(ii) When an UST system is undergoing a change-in-service as described by paragraph (H) of this rule; or

(iii) When an UST system is out-of-service as described by paragraph (E)(6) of this rule for greater than twelve months without a permit or upon the expiration of an out-of-service permit.

(f) All soil samples collected shall be split into two components. One shall be packaged for field screening, and the other packaged for potential laboratory analysis. The sampling and packaging shall be in accordance with procedures established by the state fire marshal.

(i) Soil samples collected for field screening shall be screened on the UST site using equipment calibrated in accordance with manufacturer's instructions and procedures approved by the state fire marshal.

(ii) All samples shall be collected within twenty-four hours of completing the excavation.

(g) With prior approval from the state fire marshal, owners and operators may use the sampling procedures described in paragraph (I)(2)(e) of this rule in place of the sampling procedures described in paragraphs (I)(2)(b) to (I)(2)(d) of this rule to meet the sampling requirements for the removal of an UST system.

(h) If site conditions interfere with the collection of any samples required by paragraphs (I)(2)(b) to (I)(2)(e) of this rule, owners and operators shall obtain approval in writing from the state fire marshal for an alternative sampling protocol.

(i) If an UST system or portion of the UST system was permanently removed, closed-in-place, or underwent a change-in-service on or after September 1, 1992, and a closure assessment was not conducted in accordance with the closure assessment rules in effect at the time or a closure assessment report was not submitted, the state fire marshal may direct the owner or operator to collect soil and groundwater samples by advancing a minimum of three soil borings in the area most likely to contain chemical(s) of concern above action levels. If groundwater is encountered, monitoring wells shall be installed in the soil borings. The soil borings and monitoring wells shall be installed and sampled in accordance with paragraph (H)(1)(d)(ii) of rule 1301:7-9-13 of the Administrative Code. Soil boring and monitoring well locations shall be selected to ensure the evaluation of soil and groundwater surrounding the UST system and be biased towards areas most likely to contain chemical(s) of concern.

(3) Samples sent to the laboratory for analysis pursuant to paragraph (I)(2)(d) or (I)(2)(e) of this rule shall be analyzed for the appropriate chemical(s) of concern. The chemical(s) of concern shall be identified as follows:

(a) For UST systems that contained petroleum products classified as analytical group 1, 2, 3, or 4 as defined in paragraph (H)(1)(c) of rule 1301:7-9-13 of the Administrative Code, the appropriate chemical(s) of concern and analytical methods shall be identified using table 1 of paragraph (H)(1)(c) of rule 1301:7-9-13 of the Administrative Code.

(b) For UST systems that contained petroleum products classified as analytical group 5 in paragraph (H)(1)(c) of rule 1301:7-9-13 of the Administrative Code, chemical(s) of concern and analytical methods must be identified, as appropriate, based on reasonably available information related to typical additives, impurities and/or degradation products of the petroleum product stored or handled at the UST site. Chemical(s) of concern shall also be identified based on their toxicity, mobility, and persistence in the environment. The owner and operator shall consult with and obtain written approval from the state fire marshal for all chemical(s) of concern identified for analysis, the analytical methods to be used to measure the presence of those chemical(s) of concern, and the action levels established for all chemical(s) of concern.

(c) For UST systems that contained a hazardous substance(s) as described in paragraph (E) of rule 1301:7-9-03 of the Administrative Code, additional chemical(s) of concern and analytical methods must be identified, as appropriate, based on substance(s) stored in the UST system and reasonably available information related to typical additives, impurities, and/or degradation products. In addition, chemical(s) of concern shall be identified based on their toxicity, mobility, and persistence in the environment. The owners and operators shall consult with and obtain written approval from the state fire marshal for all appropriate chemical(s) of concern identified for analysis, the analytical methods to be used to measure the presence of those chemical(s) of concern, and the action levels established for all chemicals of concern.

(4) Action level development and comparison shall be conducted as follows:

(a) Action level assumptions.

(i) Assume the soil to be soil class 1 as defined in paragraph (H)(2) of rule 1301:7-9-13 of the Administrative Code or submit laboratory analysis of the soil class that best represents the soil under the UST site in accordance with ASTM D2488-09a "Standard Practice for Description and Identification of Soils (Visual-Manual Procedures)" or the "Unified Soil Classification System." Bedrock shall be assumed to be soil class 1 for the purposes of this rule.

(ii) Assume groundwater exists, and that groundwater is drinking water.

(iii) Assume residential land use.

(b) Action level determination.

(i) For UST systems that contained petroleum products classified as analytical group 1, 2, or 3 as defined in paragraph (H)(1)(c) of rule 1301:7-9-13 of the Administrative Code, action levels must be obtained from table 1 of this rule.

(ii) For UST systems that contained petroleum products classified as analytical group 4 as defined in paragraph (H)(1)(c) of rule 1301:7-9-13 of the Administrative Code, action levels must be obtained from table 1 of this rule. For chemicals of concern not listed in table 1 of this rule, action levels shall be developed by the owner and operator using the same methodologies and assumptions used to determine the action levels set forth in the tables found in paragraph (J)(3) of rule 1301:7-9-13 of the Administrative Code.

(iii) For UST systems that contained petroleum products classified as analytical group 5 as defined in paragraph (H)(1)(c) of rule 1301:7-9-13 of the Administrative Code, action levels shall be developed by the owner and operator using the same methodologies and assumptions used to determine the action levels set forth in the tables found in paragraph (J)(3) of rule 1301:7-9-13 of the Administrative Code.

(c) Action level comparison.

(i) For UST systems that contained petroleum products classified as analytical group 1, 2, 3, 4, or 5 as defined in paragraph (H)(1)(c) of rule 1301:7-9-13 of the Administrative Code, soil and groundwater laboratory analytical results shall be compared to the action levels determined in paragraph (I)(4)(b) of this rule as follows:

(a) If laboratory analytical results exceed the action levels established for the petroleum UST site, owners and operators shall report a confirmed release to the state fire marshal within twenty-four hours of receiving the results and proceed to conduct corrective action in accordance with paragraph (H) of rule 1301:7-9-13 of the Administrative Code.

(b) If laboratory analytical results are at or below all applicable action levels, then no further action is required.

(ii) For UST systems that contained hazardous substances, if soil or groundwater analytical results indicate the presence of chemical(s) of concern identified in paragraph (I)(3)(c) of this rule, owners and operators shall proceed to conduct corrective action in accordance with requirements of sections 9003 and 9005 of the Resource Conservation and Recovery Act of 1976, 42 U.S.C.A. 6991b and 6991e, as amended at the time of the effective date of this rule. If laboratory analytical results indicate no chemical(s) of concern are detected in subsurface soil or groundwater, then no further action is required.

Table 1 Closure Action Levels

• COC concentrations are expressed in milligrams per liter (mg/l) or milligrams per kilogram (mg/kg).

** The use of soil class 2 or 3 during the closure assessment requires geotechnical analysis to confirm the classification in accordance with paragraph (I)(4)(a)(i) of this rule.

(J) Closure assessment report.

(1) Owners and operators shall submit one copy of the written closure report to the state fire marshal, which shall be received by the state fire marshal within ninety days from the date the samples are required to be collected by this rule.

(2) Owners and operators shall prepare the information collected in accordance with paragraph (I) of this rule on a form prescribed by the state fire marshal. The closure report shall include the following information:

(a) UST system owner, operator, and facility data.

(i) The facility name, address, zip code, telephone number, and county.

(ii) The facility owners' name, address, zip code, telephone number, and county.

(iii) The UST system owners' name, address, zip code, telephone number, and county.

(iv) The UST system operators' name, address, zip code, telephone number, and county.

(b) UST system data.

(i) The age, capacity, use, and construction material of the UST system that has been closed-in-place, permanently removed, was out-of-service for more than twelve months, or has undergone a change-in-service.

(ii) The substance stored in the UST system.

(iii) Substances, other than petroleum, known to have been formerly stored in the UST system.

(iv) The status of any UST system that is currently-in-use, permanently removed, closed-in-place, undergoes a change-in-service, or has been taken out-of-service.

(v) The disposition of the UST system.

(vi) Date of last use, if known.

(c) Waste disposal data.

(i) A description of the amount in cubic yards, the date generated, and the final disposition of any excavated soil or backfill materials. This information shall be included on a form prescribed by the state fire marshal.

(ii) A written description of the amount and disposition of any liquids generated from activities conducted in accordance with paragraph (I) of this rule.

(iii) Laboratory data sheets, including the chain-of-custody form(s), for any analysis performed on any liquids and excavated soil or backfill materials generated in accordance with paragraph (I) of this rule.

(d) Sampling data.

(i) Description of the sample collection procedures, sample preservation techniques, sample containers, and decontamination procedures associated with the closure assessment conducted in accordance with paragraph (I) of this rule.

(ii) Details of any field screening conducted, including the instrument readings, location and depth of sampling points, sampling methodology, instrument used, and instrument calibration associated with the closure assessment conducted in accordance with paragraph (I) of this rule.

(iii) A copy of the chain-of-custody form(s) documentation.

(iv) Date of sample collection.

(v) Name and affiliation of the person(s) collecting the samples.

(vi) Identify all sample locations and depths submitted for laboratory analysis.

(e) Laboratory data.

(i) Laboratory analytical sample analysis results required as part of the closure assessment conducted in accordance with paragraph (I) of this rule, presented in tabular form, with laboratory data sheets attached.

(ii) Name, address, and telephone number of the laboratory.

(iii) Name(s) of the sample analyst(s).

(iv) Instrument calibration information.

(v) Sample analysis method used.

(vi) Laboratory detection and quantitation limits used.

(vii) Description of whether the sample analyzed is soil or water.

(viii) Date the samples were received by the laboratory.

(ix) Date the samples were analyzed by the laboratory.

(x) Laboratory analysis summary form as prescribed by the state fire marshal.

(f) Miscellaneous data.

(i) A site map which accurately depicts the sample locations, property boundaries, street locations, above ground structure(s), the UST system(s) including the number of UST's, adjacent properties and their use, any known water wells located on the site, any known monitoring wells located on the site, any utilities uncovered as part of the excavation process, and the location(s) of any other known UST system(s) or portions thereof known to have been closed-in-place or permanently removed.

(ii) A description of the native soil encountered.

(iii) A description of the visual site evaluation required by paragraph (I)(2)(a) of this rule.

(iv) Name, address, telephone number of the UST inspector certified pursuant to rule 1301:7-9-15 of the Administrative Code who was present during the closure-in-place, permanent removal, or change-in-service.

(v) Name of the local fire department with jurisdiction over the UST site.

(vi) Date that the UST system(s) was closed-in-place, permanently removed, underwent a change-in-service, or was out-of-service for more than twelve months.

(vii) Copy of any permit required to be obtained in accordance with paragraph (D)(1) of this rule.

(viii) A completed copy of the closure form as provided by the state fire marshal.

(ix) A copy of the inspection field report signed by the certified installer and inspector.

(K) Previously closed UST systems.

When directed by the state fire marshal, the owner and operator of an UST system that was permanently removed, closed-in-place, or underwent a change-in-service before December 22, 1988, shall assess the excavation zone and close the UST system in accordance with this rule if releases from the UST system, in the judgement of the state fire marshal, pose a current or potential threat to human health and the environment.

(L) Requests for extensions.

If owners and operators desire an extension of time because they are unable to comply with paragraphs (I) to (K) of this rule, the owner and operator shall:

(1) Prepare a written request on a form prescribed by the state fire marshal, signed by the owners and operators, setting forth the following:

(a) The date the information was to be submitted;

(b) The reasons for requesting the extension;

(c) The length of time for which the extension is requested;

(d) The name and complete address of the UST site that is the subject of the extension request; and

(e) The release number, assigned by the state fire marshal, for the UST site that is the subject of the extension request.

(2) Submit a written request in accordance with paragraph (L)(1) of this rule to the state fire marshal prior to the expiration of the time period that is the subject of the extension request. Submission of the written request required by paragraph (L)(1) of this rule is accomplished only upon the actual receipt of the request by the state fire marshal. The state fire marshal may grant, modify, or deny any extension request at his sole discretion.

Last updated June 26, 2025 at 2:59 AM

History

• Effective: September 1, 2022
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-12.1

(A) For corrective actions to be performed in accordance with all versions of rule 1301:7-9-13 of the Administrative Code, the responsible person shall submit to the director an application for initial pre-approval of costs for pending corrective actions, as follows:

(1) Simultaneously with the submission of an interim response action notification to the fire marshal, where prior approval of the fire marshal must be obtained, the responsible person shall submit an estimated cost and completion schedule for the corrective actions as set forth in the interim response action notification;

(2) Simultaneously with the submission of a remedial action plan to the fire marshal, the responsible person shall:

(a) Submit a copy of the remedial action plan with a brief description of the remedial action alternatives considered, including a discussion of the reliability, effectiveness, cost, and time needed for completion, and the rationale for the selected remedial alternative; and

(b) Submit an estimated cost and completion schedule for the remedial actions as set forth in the remedial action plan;

(3) Simultaneously with the submission to the fire marshal of a tier 3 evaluation plan where the estimated costs exceed six thousand dollars, the responsible person shall submit a copy of the tier 3 evaluation plan with a description of the objective; the activities to be conducted; a discussion of the effectiveness, cost and rationale for selecting the tier 3 evaluation; and an implementation schedule and projected completion date;

(4) Simultaneously with the submission to the fire marshal of a plan to calibrate or disprove the fate and transport model in conjunction with a tier 2 evaluation report, where the estimated costs exceed six thousand dollars, the responsible person shall submit a copy of the plan with a description of the objective; the activities to be conducted; and an estimated cost and completion schedule;

(5) Simultaneously with the submission to the fire marshal of a monitoring plan in conjunction with a tier evaluation report, where the estimated costs exceed six thousand dollars, the responsible person shall submit an estimated cost and completion schedule for the corrective actions as set forth in the monitoring plan.

(6) Simultaneously with the submission to the fire marshal of a free product monitoring plan in conjunction with a tier 2 evaluation report, the responsible person shall submit an estimated cost and completion schedule for the corrective actions as set forth in the free product monitoring plan.

(7) If free product is present one year after initiating free product recovery activities, the responsible person shall assess the effectiveness of free product recovery techniques and shall submit a brief written evaluation of the reliability, effectiveness, cost, and time needed for free product recovery in the upcoming year. Said written evaluation shall be submitted on a yearly basis for each year that ongoing free product recovery is required by the fire marshal.

(a) Where free product recovery has been in place for one year, the first evaluation shall be submitted within ninety days following the anniversary date of free product recovery. Subsequent evaluations shall be submitted annually, unless otherwise determined by the director.

(b) Where free product recovery is in conjunction with a remedial action plan, the annual free product evaluation shall be incorporated into the annual remedial action plan submissions required by this rule.

(B) Where estimated cost and completion schedules have been pre-approved in accordance with paragraphs (A)(2), (A)(6), and (A)(7) of this rule, the responsible person shall submit pre-approval applications annually, unless otherwise determined by the director, on a form prescribed by the director.

(C) Upon receipt of a pre-approval application submitted pursuant to this rule, the director shall evaluate the estimated cost and completion schedule. In evaluating the estimated cost and completion schedule to be pre-approved, the director shall consider what is usual, customary and reasonable for similar corrective action activities and under similar circumstances as determined from the fund's experience. At the director's discretion, other options including, but not limited to, pay-for-performance or risk sharing by the consultant and the responsible person may be considered for the corrective actions for which pre-approval is sought. The director shall notify the responsible person of the pre-approved costs and completion schedule.

(D) The responsible person shall immediately notify the director and submit a revised estimated cost and completion schedule for pre-approval as follows:

(1) If during the implementation of the corrective actions for which pre-approval has been granted, the actual costs will exceed the pre-approved costs by twenty per cent or six thousand dollars, whichever is less; or

(2) If during the implementation of the corrective actions for which pre-approval was not required by paragraph (A)(3), (A)(4), or (A)(5) of this rule because the estimated costs did not exceed six thousand dollars, the actual costs will exceed six thousand dollars.

(E) Where a revised estimated cost and completion schedule is submitted for pre-approval, the director may review the estimated cost and completion schedule in accordance with paragraph (C) of this rule or provide notification to the responsible person that the estimated cost and completion schedule will be evaluated when the application for reimbursement is submitted to the board in accordance with rule 3737-1-12 of the Administrative Code.

(F) Where an estimated cost and completion schedule is required by this rule, estimated costs shall be detailed on a time and material basis.

(G) Corrective action costs and completion schedules not submitted for pre-approval in accordance with this rule shall be evaluated for reimbursement and subject to reductions in reimbursement in accordance with rule 3737-1-09 of the Administrative Code.

(H) Where pre-approval is not required by this rule but is desired by the responsible person, the responsible person may submit to the director a description of the proposed corrective actions and an estimated cost and completion schedule for pre-approval.

(I) Pre-approval shall not accelerate fund reimbursement for a release. Payment for pre-approved costs shall be contingent upon the proper submission of an application for reimbursement in accordance with rule 3737-1-12 of the Administrative Code, and a determination that a responsible person is eligible to receive reimbursement from the fund.

Last updated January 2, 2025 at 9:08 AM

History

• Effective: January 1, 2025
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-13

(A) The director or the director's designee shall review the application for reimbursement and notify the responsible person of any apparent errors or omissions in the application for reimbursement and request any additional information or documentation which is required to complete the application.

(B) Additional information may be requested if information contained in and submitted with the application for reimbursement is inconsistent with:

(1) Appropriate corrective actions for the release; or

(2) Approved reports and plans for the release, or where applicable, an order issued by the fire marshal with regard to the release; or

(3) Costs for corrective action which are usual, customary and reasonable for similar corrective action activities and under similar circumstances, as determined from the fund's experience.

(C) Any additional information or documentation requested to complete the application shall be submitted within ninety days from the date requested by the director or the director's designee. All costs of corrective action that are not documented within ninety days after requested by the director or the director's designee shall not be reimbursed regardless of whether documentation is later provided.

(D) The fire marshal and the responsible person shall be given written notice of the director's determination to approve, approve with modifications, or deny the application.

Last updated September 9, 2024 at 2:30 PM

History

• Effective: November 30, 2009
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-22

(A) The responsible person shall not in any manner do any act that will impair the board's subrogation rights. The responsible person shall:

(1) Notify the board in writing within thirty days of any action by another party causing and/or contributing to an accidental release of petroleum from an assured underground storage tank system or other sources;

(2) Notify the board of the identity of all other parties against whom the responsible person has or may have a right of recovery;

(3) Notify the other party(s) of the board's right to subrogation under division (I) of section 3737.92 of the Revised Code and that the board may assert its right by written correspondence with the responsible person, the other party(s) or their legal representatives, or may settle or institute and pursue legal proceedings against the other party(s) independently or in conjunction with the responsible person;

(4) Notify the other party(s) that no settlement, compromise, judgment, award, or other recovery in any action or claim by the responsible person shall be binding on the board;

(5) Notify the other party(s) that any settlement, compromise, judgment, award, or other recovery in favor of the responsible person shall not preclude the board from enforcing its subrogation rights against the other party(s); and

(6) Notify the other party(s) that no attorney fees, court costs or other litigation costs shall be assessed against the board for enforcing its subrogation rights.

(B) The responsible person shall cooperate with the board in enforcement of its subrogation rights, including but not limited to:

(1) Providing documents, testimony, and access to experts relating to the other party(s) causing or contributing to the accidental release of petroleum;

(2) Providing reasonable advance notification to the board of any and all settlement meetings; and

(3) Not enter into any settlement agreement without prior notice to and authorization by the board.

(C) Where reimbursement for the costs of corrective action and third-party claims has been withheld pursuant to rule 3737-1-09 of the Administrative Code, and the board recovers any monies under its subrogation rights, the board may reimburse the responsible person the amount withheld only if the amount recovered under the board's subrogation claim is greater than the amount withheld from the responsible person.

(D) If the responsible person has received any monies from any other party or the responsible person's insurance for reimbursement of corrective action costs and/or third-party claims, the responsible person shall indemnify the board the total amount of any monies advanced or received including repayment to the board of any amount the board has reimbursed the responsible person or has compensated any third party, unless the responsible person and the board agree to a lesser amount in a written settlement agreement.

Last updated September 9, 2024 at 2:32 PM

History

• Effective: January 1, 2015
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-09.1 Inclusions of fund coverage.

(A) The following costs shall be specifically reimbursable:

(1) Except where prohibited by paragraph (A)(17) of rule 3737-1-09 of the Administrative Code, markup on reimbursable subcontractor charges, including but not limited to the following, but only to the extent that the total amount of all markups is not greater than ten per cent of the reimbursable costs:

(a) Drilling services;

(b) Soil excavation services;

(c) Utility locating services; and

(d) Vacuum truck services.

(2) Per diem for travel costs directly related to corrective action at a release site, up to a maximum amount, as established by the director, to reimburse the costs of mileage, food, and lodging incurred by a primary consultant or primary contractor when the release site is at a distance from the primary consultant's or primary contractor's nearest office of business which, under state of Ohio travel reimbursement policy, would allow for reimbursement. The costs of travel by common carrier (i.e. plane, boat and bus) shall not be reimbursable.

(3) Notwithstanding paragraph (A)(3) of rule 3737-1-09 of the Administrative Code, usual, customary, and reasonable legal costs incurred by the responsible person for the preparation, review or recording of an environmental covenant pursuant to rule 1301:7-9-13 of the Administrative Code.

(B) Nothing in any part of this rule shall be interpreted to preclude coverage for corrective action costs or third-party bodily injury or third-party property damage which are generally or specifically included in coverage under Chapter 3737. of the Revised Code or Chapter 3737. of the Administrative Code.

Last updated November 20, 2024 at 3:27 PM

History

• Effective: July 1, 2020
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-10 Financial audits.

(A) The director or the director's designee may perform financial audits as necessary to ensure compliance with this chapter, to certify corrective action costs and to assess whether costs are reimbursable from the fund. Prior to any financial audit, the director shall give the responsible person written notice of the proposed audit. The responsible person shall make available to the director, or the director's designee, all records and documents which the director or the director's designee deems necessary to the completion of the audit.

(B) The director shall upon completion of the audit prepare a written report of the findings. A copy of this report shall be sent to the responsible person and to the fire marshal. The responsible person may file written objections to the director's report within thirty days after the mailing of the director's report. The board, upon receipt of the objections, shall appoint a referee to conduct an adjudication hearing in accordance with section 119.09 of the Revised Code. Thereafter the board shall make a decision to approve, disapprove, or modify the referee's findings and recommendations.

(C) Nothing within this rule shall be deemed to grant standing to a non-responsible person to bring a claim against the financial assurance fund.

Last updated September 9, 2024 at 2:29 PM

History

• Effective: November 30, 2009
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-11 Technical audits.

(A) The director or the director's designee may conduct technical audits during reviews of applications for reimbursement to determine if the work performed was substantially in excess of that necessary to meet the requirements of the fire marshal, to ensure compliance with applicable rules and to verify site corrective actions. Prior to any technical audit, the director shall give the responsible person written notice of the proposed audit. The responsible person shall make available to the director or the director's designee all records and documents which the director or the director's designee deems necessary to the completion of the audit.

(B) The director shall upon completion of the audit prepare a written report of the findings. A copy of this report shall be sent to the responsible person and to the fire marshal. The responsible person may file written objections to the director's report within thirty days after the mailing of the director's report. The board, upon receipt of the objections, shall appoint a referee to conduct an adjudication hearing in accordance with section 119.09 of the Revised Code. Thereafter the board shall make a decision to approve, disapprove, or modify the referee's findings and recommendations.

(C) Nothing within this rule shall be deemed to grant standing to a non-responsible person to bring a claim against the financial assurance fund.

Last updated September 9, 2024 at 2:30 PM

History

• Effective: November 30, 2009
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-16 Third-party claims.

(A) Reimbursement or payment from the fund for compensation paid or to be paid for third-party claims shall be limited to the reasonable costs of bodily injury or property damage, if any, if the responsible person was in compliance with rule 3737-1-19 of the Administrative Code at the time the judgment or settlement was entered and the responsible person has been determined eligible for reimbursement for the third-party claim.

(B) Upon notifying the board of a third-party claim pursuant to rule 3737-1-19 of the Administrative Code, the responsible person shall keep the board informed of the status of the third-party claim including but not limited to any pending negotiations, litigation, mediations, settlements, or judgments.

(C) Where there has been a judgment or settlement of a third-party lawsuit, the director shall determine and reimburse only those portions, if any, of the judgment or settlement which apply to bodily injury or property damage as defined in paragraphs (A)(3) and (A)(23) of rule 3737-1-03 of the Administrative Code. The board shall have no obligation to pay for the reasonable costs of bodily injury or property damage that are not documented in a third-party claim.

(D) The total amount reimbursed, including payment to a third party under this rule, shall not exceed the maximum disbursement set forth in division (D)(3) of section 3737.91 of the Revised Code.

(E) Reimbursement or payment from the fund under this rule shall not include payment or reimbursement for bodily injury or property damage covered by insurance policies, or that has been or will be paid by any party under rule 3737-1-22 of the Administrative Code.

(F) Determination of third-party eligibility for the responsible person does not constitute an obligation for reimbursement from the fund.

(G) Nothing in this rule precludes the board from participating or intervening in any pending negotiations, litigation, mediations, or settlement discussions or entering into a settlement with either the responsible person or the third party.

(H) Nothing in this rule shall be construed that the board is acting as a representative of the responsible person.

Last updated January 2, 2025 at 9:08 AM

History

• Effective: January 1, 2025
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-17 Petroleum underground storage tank linked deposit program.

(A) In order to participate in the petroleum underground storage tank linked deposit program an applicant must:

(1) Be headquartered in the state of Ohio;

(2) Own six or fewer tanks exclusively in Ohio;

(3) Be organized for profit;

(4) Have a total annual revenue of not more than two million dollars and fewer than fifty employees;

(5) Apply to an eligible lending institution; and

(6) Certify that the reduced rate loan will be used exclusively for the replacement or upgrading of one or more petroleum underground storage tanks or tank systems in compliance with division (A) of section 3737.88 of the Revised Code.

(B) The board upon receipt of a linked deposit application from the eligible lending institution may accept or reject the application on the basis of:

(1) The board's evaluation of the eligible owner and the amount to be deposited from the petroleum underground storage tank financial assurance fund including:

(a) The manner in which the linked deposit benefit will materially contribute to the relative financial need of the business in question;

(b) The economic needs of the area in which the owner's tanks are located;

(c) Whether it appears from the linked deposit application that the replacement or improvement of the petroleum underground storage tanks or tank system will allow the eligible owner to continue operations at present levels in an environmentally sound manner; and

(d) Such other factors as the board considers appropriate.

(2) The criteria set forth in paragraph (A) of this rule.

(3) Whether the amount of the linked deposit requested by the eligible lending institution is no greater than one hundred thousand dollars.

(C) The board may on an annual basis commit no more than ten percent of the gross receipts of the annual billing of the petroleum underground storage tank financial assurance fund created under section 3737.91 of the Revised Code to be included in the petroleum underground storage tank linked deposit program.

Last updated September 9, 2024 at 2:31 PM

History

• Effective: January 1, 2015
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-20 Fees for materials and services.

Reasonable fees may be charged to persons requesting materials or services from the board.

Last updated September 9, 2024 at 2:31 PM

History

• Effective: January 1, 2015
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-21 Obligated account.

Prior to the beginning of each fiscal year, the director shall propose that monies be obligated for reimbursement of corrective action costs. The proposed amount to be obligated shall be only that which is reasonably estimated by the director to be paid out for such costs in the upcoming fiscal year. Prior to the start of the upcoming fiscal year, the board shall consider the proposal and approve the amount of monies, representing estimated upcoming fiscal year claim reimbursements, to be transferred, during the first quarter of the upcoming fiscal year, to a special account named obligated account and be expressly used for reimbursements of corrective action costs.

Monies not placed in the obligated account, the debt service account or accounts, the debt service reserve account or accounts, in certificates of deposit purchased for linked deposits, or in the unclaimed monies trust account shall remain in the unobligated balance. At the end of the fiscal year in which monies have been obligated, any excess monies in the obligated account shall remain in that account to reduce the transfer of monies into the obligated account for reimbursements of corrective action costs in the succeeding fiscal year.

If, during the fiscal year, the monies set aside in the obligated account are anticipated to be insufficient to cover reimbursements of corrective action costs for the remainder of the current fiscal year, the director may draw monies from the unobligated balance to obligate additional monies as necessary for reimbursements of corrective action costs, subject to board approval.

Last updated September 9, 2024 at 2:32 PM

History

• Effective: January 1, 2015
• Promulgated Under: 119.03

Ohio Adm.Code 3737-1-23 Access and maintenance of confidential personal information.

For purposes of confidential personal information that is maintained by the board, the following definitions apply:

(A) Definitions:

(1) "Access" as a noun means an instance of copying, viewing, or otherwise perceiving whereas "access" as a verb means to copy, view, or otherwise perceive.

(2) "Acquisition of a new computer system" means the purchase of a "computer system," as defined in this rule, that is not a computer system currently in place nor one for which the acquisition process has been initiated as of the effective date of this rule addressing requirements in section 1347.15 of the Revised Code.

(3) "Computer system" means hardware, software, and other equipment that stores, maintains, or retrieves personal information using electronic data processing.

(4) "Confidential personal information" has the same meaning as defined by division (A)(1) of section 1347.15 of the Revised Code and identified by paragraph (D) of this rule.

(5) "Employee of the board" means each employee of the board regardless of whether he/she holds an appointed office or position within the board. "Employee of the board" is limited to the petroleum underground storage tank release compensation board.

(6) "Incidental contact" means contact with the information that is secondary or tangential to the primary purpose of the activity that resulted in the contact.

(7) "Individual contact" means a natural person or the natural person's authorized representative, legal counsel, legal custodian, or legal guardian.

(8) "Information owner" means the individual appointed in accordance with division (A) of section 1347.05 of the Revised Code to be directly responsible for a system.

(9) "Person" means a natural person.

(10) "Personal information" has the same meaning as defined in division (E) of section 1347.01 of the Revised Code.

(11) "Personal information system" means a "system" that "maintains" "personal information" as those terms are defined in section 1347.01 of the Revised Code. "System" includes manual and computer systems.

(12) "Research" means a methodical investigation into a subject.

(13) "Routine" means commonplace, regular, habitual, or ordinary.

(14) "Routine information that is maintained for the purpose of internal office administration, the use of which would not adversely affect a person" as that phrase is used in division (F) of section 1347.01 of the Revised Code means personal information relating to employees of the board and maintained by the board for internal administrative and human resource purposes.

(15) "System" has the same meaning as defined by division (F) of section 1347.01 of the Revised Code.

(16) "Upgrade" means a substantial redesign of an existing computer system for the purpose of providing a substantial amount of new application functionality, or application modifications that would involve substantial administrative or fiscal resources to implement, but would not include maintenance, minor updates and patches, or modifications that entail a limited addition of functionality due to changes in business or legal requirements.

(B) For personal information systems, whether manual or computer systems that contain confidential personal information, the following rules apply:

(1) Criteria for accessing confidential personal information. Employees of the board are authorized to access personal information systems for valid reasons in accordance with paragraph (C)(1) of this rule to the extent required to perform assigned job duties;

(2) Individual's request for a list of confidential personal information. Upon the signed written request of any individual for a list of confidential personal information about the individual maintained by the board, the employee responding to such request shall do all of the following:

(a) Verify the identity of the individual by a method that provides safeguards commensurate with the risk associated with the confidential personal information;

(b) Provide to the individual the list of confidential personal information that does not relate to an investigation about the individual or is otherwise not excluded from the scope of Chapter 1347. of the Revised Code; and

(c) If all information relates to an investigation about that individual, inform the individual that the board has no confidential personal information about the individual that is responsive to the individual's request.

(3) Notice of invalid access.

(a) Upon discovery or notification that confidential personal information of a person has been accessed by an employee for an invalid reason, the board shall notify the person whose information was invalidly accessed as soon as practical and to the extent known at the time. However, notification shall be delayed for a period of time necessary to ensure that the notification would not delay or impede an investigation or jeopardize homeland or national security. Additionally, the board may delay the notification consistent with any measures necessary to determine the scope of the invalid access, including which individual's confidential personal information invalidly was accessed, and to restore the reasonable integrity of the system.

(b) "Investigation" as used in this paragraph means the investigation of the circumstances and involvement of an employee surrounding the invalid access of the confidential personal information. Once the board determines that notification would not delay or impede an investigation, the board shall disclose the access to confidential personal information made for an invalid reason to the person.

(c) Notification shall inform the person of the type of confidential personal information accessed and the date(s) of the invalid access.

(d) Notification may be made by any method reasonable designed to accurately inform the person of the invalid access, including written, electronic, or telephone notice.

(4) Appointment of a data privacy point of contact. The director shall designate an employee to serve as the data privacy point of contact. The data privacy point of contact shall work with the chief privacy officer within the office of information technology to assist with both the implementation of privacy protections for the confidential personal information that the board maintains as well as work to ensure compliance with section 1347.15 of the Revised Code and this rule.

(5) Completion of a privacy impact assessment. The director shall designate an employee to serve as the data privacy point of contact who shall timely complete the privacy impact assessment form developed by the office of information technology.

(C) Pursuant to the requirements of division (B)(2) of section 1347.15 of the Revised Code, this rule contains a list of valid reasons, directly related to the board's exercise of its powers or duties, for which only employees of the board may access confidential personal information regardless of whether the personal information system is a manual system or computer system:

(1) Performing the following functions constitutes valid reasons for authorized employees of the board to access confidential personal information:

(a) Responding to a public records request;

(b) Responding to a request from an individual for the list of confidential personal information the board maintains regarding that individual;

(c) Administering a constitutional provision or duty;

(d) Administering a statutory provision or duty;

(e) Administering an administrative rule, provision or duty;

(f) Complying with any state or federal program requirements;

(g) Processing or payment of claims or otherwise administering a program with individual participants or beneficiaries;

(h) Auditing purposes;

(i) Investigation or law enforcement purposes;

(j) Administrative hearings;

(k) Litigation, complying with an order of the court, or subpoena;

(l) Human resource matters (e.g. hiring, promotion, demotion, discharge, salary/compensation issues, leave requests/issues, time card approvals/issues);

(m) Complying with an executive order or policy; or

(n) Complying with an agency policy or state administrative policy issued by the department of administrative services, the office of budget and management or other similar agency.

(D) The following federal statutes or regulations or state statutes and administrative rules make personal information maintained by the board confidential and identify the confidential personal information within the scope of rules promulgated by the board in accordance with section 1347.15 of the Revised Code:

(1) Social security numbers: 5 U.S.C. 552a . , "State ex rel Beacon Journal v. Akron (1994), 70 Ohio St. 3d 605.", unless the individual was told that the number would be disclosed.

(2) Records exempt from disclosure under the Ohio Public Records Act: Chapter 149. of the Revised Code.

(E) For personal information systems that are computer systems and contain confidential personal information, the board shall do the following:

(1) Access restrictions. Access to confidential personal information that is kept electronically shall require a password or other authentication measure.

(2) Acquisition of a new computer system. When the board acquires a new computer system that stores, manages or contains confidential personal information, the board shall include a mechanism for recording specific access by employees of the board to the system.

(3) Upgrading existing computer systems. When the board modifies an existing computer system that stores, manages or contains confidential personal information, the board shall make a determination whether the modification constitutes an upgrade. Any upgrades to a computer system shall include a mechanism for recording specific access by employees of the board to confidential personal information in the system.

(4) Logging requirements regarding confidential personal information in existing manual and computer systems.

(a) The board shall require employees of the board who access confidential personal information within the computer system to maintain a log that records that access.

(b) Access to confidential information is not required to be entered into the log under the following circumstances:

(i) The employee of the board is accessing confidential personal information for official authority purposes, including research, and the access is not specifically directed toward a specifically named individual or a group of specifically named individuals.

(ii) The employee of the board is accessing confidential personal information for routine office procedures and the access is not specifically directed toward a specifically named individual or a group of specifically named individuals.

(iii) The employee of the board comes into incidental contact with confidential personal information and the access of the information is not specifically directed toward a specifically named individual or a group of specifically named individuals.

(iv) The employee of the board accesses confidential personal information to the extent necessary to perform assigned job duties and the access is for a valid reason as defined in paragraph (C)(1) of this rule.

(v) The employee of the board accesses confidential personal information about an individual based upon a request made under either of the following circumstances:

(a) The individual requests confidential personal information about himself/herself.

(b) The individual makes a request that the board takes some action on that individual's behalf and accessing the confidential personal information is required in order to consider or process that request.

(c) For purposes of this paragraph, the director may choose the form or forms of logging, whether in electronic or paper formats.

(F) Log management. The director or designee shall maintain an electronic or paper log that records access to confidential personal information on existing computer systems for any reason not specified in paragraph (E)(4)(b) of this rule. The director shall issue a policy that specifies the following:

(1) What information shall be captured in the log;

(2) How the log is to be stored; and

(3) How long information kept in the log is to be retained.

Last updated January 2, 2025 at 9:08 AM

History

• Effective: January 1, 2025
• Promulgated Under: 119.03